HB 0971 2003
1	A bill to be entitled
2	An act relating to medical negligence; amending s.
3	766.102, F.S.; providing criteria for an expert witness
4	giving certain testimony; creating s. 766.1025, F.S.;
5	prohibiting certain policies which discourage providing
6	expert testimony as against public policy; creating s.
7	766.1026, F.S.; providing a civil remedy for a violation
8	of s. 766.1025, F.S.; amending s. 766.202, F.S.;
9	redefining the term “medical expert”; amending s. 766.104,
10	F.S.; increasing an automatic extension of the statute of
11	limitations in certain medical negligence cases; amending
12	s. 766.106, F.S.; providing additional requirements with
13	respect to notice before filing an action for medical
14	malpractice; providing requirements with respect to
15	certain responses; providing for sworn statements;
16	providing for written questions; amending s. 766.113,
17	F.S.; prohibiting settlement agreements restricting
18	disclosure; amending s. 766.205, F.S.; revising language
19	with respect to presuit discovery of medical negligence
20	claims and defenses; amending s. 766.206, F.S.; providing
21	additional requirements with respect to presuit
22	investigation of medical negligence claims; creating s.
23	766.2075, F.S.; providing for mandatory mediation;
24	providing for the apportionment of fault with respect to
25	medical malpractice; providing for application; providing
26	effective dates.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1. Section 766.102, Florida Statutes, is amended
31	to read:
32	766.102 Medical negligence; standards of recovery.--
33	(1) In any action for recovery of damages based on the
34	death or personal injury of any person in which it is alleged
35	that such death or injury resulted from the negligence of a
36	health care provider as defined in s. 768.50(2)(b), the claimant
37	shall have the burden of proving by the greater weight of
38	evidence that the alleged actions of the health care provider
39	represented a breach of the prevailing professional standard of
40	care for that health care provider. The prevailing professional
41	standard of care for a given health care provider shall be that
42	level of care, skill, and treatment which, in light of all
43	relevant surrounding circumstances, is recognized as acceptable
44	and appropriate by reasonably prudent similar health care
45	providers.
46	(2) A person may not give expert testimony concerning the
47	prevailing professional standard of care unless that person is a
48	licensed health care provider and meets the following criteria:
49	(a) If the party against whom or on whose behalf the
50	testimony is offered is a specialist, the expert witness must:
51	1. Specialize in the same specialty as the party against
52	whom or on whose behalf the testimony is offered; or
53	2. Specialize in a similar specialty that includes the
54	evaluation, diagnosis, or treatment of the medical condition
55	that is the subject of the complaint and have prior experience
56	treating similar patients.
57	(b) During the 3 years immediately preceding the date of
58	the occurrence that is the basis for the action, the expert
59	witness must have devoted professional time to:
60	1. The active clinical practice of, or consulting with
61	respect to, the same or similar health profession as the health
62	care provider against whom or on whose behalf the testimony is
63	offered and, if that health care provider is a specialist, the
64	active clinical practice of, or consulting with respect to, the
65	same specialty or a similar specialty that includes the
66	evaluation, diagnosis, or treatment of the medical condition
67	that is the subject of the action and have prior experience
68	treating similar patients;
69	2. The instruction of students in an accredited health
70	professional school or accredited residency program in the same
71	or similar health profession as the health care provider against
72	whom or on whose behalf the testimony is offered and, if that
73	health care provider is a specialist, an accredited health
74	professional school or accredited residency or clinical research
75	program in the same or similar specialty; or
76	3. A clinical research program that is affiliated with an
77	accredited medical school or teaching hospital and that is in
78	the same or similar health profession as the health care
79	provider against whom or on whose behalf the testimony is
80	offered and, if that health care provider is a specialist, a
81	clinical research program that is affiliated with an accredited
82	health professional school or accredited residency or clinical
83	research program in the same or similar specialty.
84	(3) Notwithstanding subsection (2), if the health care
85	provider against whom or on whose behalf the testimony is
86	offered is a general practitioner, the expert witness, during
87	the 3 years immediately preceding the date of the occurrence
88	that is the basis for the action, must have devoted his or her
89	professional time to:
90	(a) Active clinical practice or consultation as a general
91	practitioner;
92	(b) Instruction of students in an accredited health
93	professional school or accredited residency program in the
94	general practice of medicine; or
95	(c) A clinical research program that is affiliated with
96	an accredited medical school or teaching hospital and that is in
97	the general practice of medicine.
98	(4) Notwithstanding subsection (2), a physician licensed
99	under chapter 458 or chapter 459 who qualifies as an expert
100	under this section and who by reason of active clinical practice
101	or instruction of students has knowledge of the applicable
102	standard of care for nurses, nurse practitioners, certified
103	registered nurse anesthetists, certified registered nurse
104	midwives, physician assistants, or other medical support staff
105	may give expert testimony in a medical malpractice action with
106	respect to the standard of care of such medical support staff.
107	(5) In an action alleging medical malpractice, an expert
108	witness may not testify on a contingency fee basis.
109	(6) This section does not limit the power of the trial
110	court to disqualify or qualify an expert witness on grounds
111	other than the qualifications in this section.
112	(7) Notwithstanding subsection (2), in a medical
113	malpractice action against a hospital or other health care or
114	medical facility, a person may give expert testimony on the
115	appropriate standard of care as to administrative and other
116	nonclinical issues if the person has substantial knowledge, by
117	virtue of his or her training and experience, concerning the
118	standard of care among hospitals or health care or medical
119	facilities of the same type as the hospital, health care
120	facility, or medical facility whose actions or inactions are the
121	subject of this testimony and which are located in the same or
122	similar communities at the time of the alleged act giving rise
123	to the cause of action.
124	(2)(a) If the health care provider whose negligence is
125	claimed to have created the cause of action is not certified by
126	the appropriate American board as being a specialist, is not
127	trained and experienced in a medical specialty, or does not hold
128	himself or herself out as a specialist, a "similar health care
129	provider" is one who:
130	1. Is licensed by the appropriate regulatory agency of
131	this state;
132	2. Is trained and experienced in the same discipline or
133	school of practice; and
134	3. Practices in the same or similar medical community.
135	(b) If the health care provider whose negligence is
136	claimed to have created the cause of action is certified by the
137	appropriate American board as a specialist, is trained and
138	experienced in a medical specialty, or holds himself or herself
139	out as a specialist, a "similar health care provider" is one
140	who:
141	1. Is trained and experienced in the same specialty; and
142	2. Is certified by the appropriate American board in the
143	same specialty.
144
145	However, if any health care provider described in this paragraph
146	is providing treatment or diagnosis for a condition which is not
147	within his or her specialty, a specialist trained in the
148	treatment or diagnosis for that condition shall be considered a
149	"similar health care provider."
150	(c) The purpose of this subsection is to establish a
151	relative standard of care for various categories and
152	classifications of health care providers. Any health care
153	provider may testify as an expert in any action if he or she:
154	1. Is a similar health care provider pursuant to paragraph
155	(a) or paragraph (b); or
156	2. Is not a similar health care provider pursuant to
157	paragraph (a) or paragraph (b) but, to the satisfaction of the
158	court, possesses sufficient training, experience, and knowledge
159	as a result of practice or teaching in the specialty of the
160	defendant or practice or teaching in a related field of
161	medicine, so as to be able to provide such expert testimony as
162	to the prevailing professional standard of care in a given field
163	of medicine. Such training, experience, or knowledge must be as
164	a result of the active involvement in the practice or teaching
165	of medicine within the 5-year period before the incident giving
166	rise to the claim.
167	(8)(3)(a) If the injury is claimed to have resulted from
168	the negligent affirmative medical intervention of the health
169	care provider, the claimant must, in order to prove a breach of
170	the prevailing professional standard of care, show that the
171	injury was not within the necessary or reasonably foreseeable
172	results of the surgical, medicinal, or diagnostic procedure
173	constituting the medical intervention, if the intervention from
174	which the injury is alleged to have resulted was carried out in
175	accordance with the prevailing professional standard of care by
176	a reasonably prudent similar health care provider.
177	(b) The provisions of this subsection shall apply only
178	when the medical intervention was undertaken with the informed
179	consent of the patient in compliance with the provisions of s.
180	766.103.
181	(9)(4)The existence of a medical injury shall not create
182	any inference or presumption of negligence against a health care
183	provider, and the claimant must maintain the burden of proving
184	that an injury was proximately caused by a breach of the
185	prevailing professional standard of care by the health care
186	provider. However, the discovery of the presence of a foreign
187	body, such as a sponge, clamp, forceps, surgical needle, or
188	other paraphernalia commonly used in surgical, examination, or
189	diagnostic procedures, shall be prima facie evidence of
190	negligence on the part of the health care provider.
191	(10)(5)The Legislature is cognizant of the changing
192	trends and techniques for the delivery of health care in this
193	state and the discretion that is inherent in the diagnosis,
194	care, and treatment of patients by different health care
195	providers. The failure of a health care provider to order,
196	perform, or administer supplemental diagnostic tests shall not
197	be actionable if the health care provider acted in good faith
198	and with due regard for the prevailing professional standard of
199	care.
200	(11)(6)(a) In any action for damages involving a claim of
201	negligence against a physician licensed under chapter 458,
202	osteopathic physician licensed under chapter 459, podiatric
203	physician licensed under chapter 461, or chiropractic physician
204	licensed under chapter 460 providing emergency medical services
205	in a hospital emergency department, the court shall admit expert
206	medical testimony only from physicians, osteopathic physicians,
207	podiatric physicians, and chiropractic physicians who have had
208	substantial professional experience within the preceding 5 years
209	while assigned to provide emergency medical services in a
210	hospital emergency department.
211	(b) For the purposes of this subsection:
212	1. The term "emergency medical services" means those
213	medical services required for the immediate diagnosis and
214	treatment of medical conditions which, if not immediately
215	diagnosed and treated, could lead to serious physical or mental
216	disability or death.
217	2. "Substantial professional experience" shall be
218	determined by the custom and practice of the manner in which
219	emergency medical coverage is provided in hospital emergency
220	departments in the same or similar localities where the alleged
221	negligence occurred.
222	(12) However, if any health care providers described in
223	subsection (2), subsection (3), or subsection (4) are providing
224	treatment or diagnosis for a condition that is not within his or
225	her specialty, a specialist trained in the treatment or
226	diagnosis for that condition shall be considered a "similar
227	health care provider."
228	Section 2. Section 766.1025, Florida Statutes, is created
229	to read:
230	766.1025 Prohibited policies.--Any policy, written or
231	oral, of any private or public educational institution, any
232	private or public health care facility, any professional
233	association, any pharmaceutical corporation, any manufacturer of
234	a drug, medical product, or medical device, any insurer, self-
235	insurance trust, risk retention group, joint underwriting
236	association, fund, or similar entity, or any health maintenance
237	organization which prohibits or discourages providing expert
238	testimony shall be void as against public policy.
239	Section 3. Section 766.1026, Florida Statutes, is created
240	to read:
241	766.1026 Civil remedy.--Any person may bring a civil
242	action to:
243	(1) Enjoin a person or entity who has violated or is
244	violating the provisions of s. 766.1025.
245	(2) Obtain a civil penalty of not more than $10,000 for
246	each violation.
247
248	Upon proof that the prohibited policy exists, there shall arise
249	a rebuttable presumption that the existence of the policy caused
250	irreparable injury to the claimant. The burden then shifts to
251	the defendant institution to prove by a preponderance of the
252	evidence that the claimant was not injured by demonstrating
253	that, in the absence of the policy, the witness would
254	nevertheless have not allowed himself or herself to be retained
255	by the claimant. In any civil action involving a violation of
256	the provisions of s. 766.1025 where an injury has occurred,
257	reasonable attorney’s fees and costs shall be awarded to the
258	prevailing party. The award of fees and costs shall become part
259	of the judgment and subject to execution as the law allows.
260	Section 4. Subsection (5) of section 766.202, Florida
261	Statutes, is amended to read:
262	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
263	766.201-766.212, the term:
264	(5) "Medical expert" means a person duly and regularly
265	engaged in the practice of his or her profession who holds a
266	health care professional degree from a university or college and
267	has had special professional training, knowledge, orand
268	experience or one possessed of special health care knowledge or
269	skillabout the subject upon which he or she is called to
270	testify or provide an opinion and is familiar with the
271	evaluation, diagnosis, or treatment of the medical condition at
272	issue. Such expert shall certify that he or she has had
273	experience in the evaluation, diagnosis, or treatment of this
274	condition. In order to avoid the appearance of impropriety, a
275	medical expert opinion submitted on behalf of a defendant shall
276	not be provided by a member of the same self-insurance trust or
277	risk retention group as the defendant, by a health care
278	professional who is insured by the same professional liability
279	insurance carrier as the defendant, or by a health care provider
280	who is employed by the same employer as the defendant or in a
281	professional association, partnership, or joint venture with the
282	defendant.
283	Section 5. Subsection (2) of section 766.104, Florida
284	Statutes, is amended to read:
285	766.104 Pleading in medical negligence cases; claim for
286	punitive damages; authorization for release of records for
287	investigation.--
288	(2) Upon petition to the clerk of the court where the suit
289	will be filed and payment to the clerk of a filing fee, not to
290	exceed $25, established by the chief judge, an automatic 180-day
291	90-dayextension of the statute of limitations shall be granted
292	to allow the reasonable investigation required by subsection
293	(1). This period shall be in addition to other tolling periods.
294	No court order is required for the extension to be effective.
295	The provisions of this subsection shall not be deemed to revive
296	a cause of action on which the statute of limitations has run.
297	Section 6. Effective October 1, 2003, and applicable to
298	notices of intent to litigate sent on or after that date,
299	subsection (2), paragraph (b) of subsection (3), and subsection
300	(7) of section 766.106, Florida Statutes, are amended to read:
301	766.106 Notice before filing action for medical
302	malpractice; presuit screening period; offers for admission of
303	liability and for arbitration; informal discovery; review.--
304	(2) After completion of presuit investigation pursuant to
305	s. 766.203 and prior to filing a claim for medical malpractice,
306	a claimant shall notify each prospective defendant by certified
307	mail, return receipt requested, of intent to initiate litigation
308	for medical malpractice. Notice to each prospective defendant
309	must include, if available, a list of all known health care
310	providers seen by the claimant for the injuries complained of
311	subsequent to the alleged act of malpractice and all known
312	health care providers during the 5-year period prior to the
313	alleged act of malpractice, and copies of the medical records
314	relied upon by the expert in signing the affidavit. The
315	requirement of providing the list of known health care providers
316	shall not serve as grounds for the imposition of sanctions for
317	failure to provide presuit discovery.Following the initiation
318	of a suit alleging medical malpractice with a court of competent
319	jurisdiction, and service of the complaint upon a defendant, the
320	claimant shall provide a copy of the complaint to the Department
321	of Health. The requirement of providing the complaint to the
322	Department of Health does not impair the claimant's legal rights
323	or ability to seek relief for his or her claim. The Department
324	of Health shall review each incident and determine whether it
325	involved conduct by a licensee which is potentially subject to
326	disciplinary action, in which case the provisions of s. 456.073
327	apply.
328	(3)(b) At or before the end of the 90 days, the insurer or
329	self-insurer shall provide the claimant with a response:
330	1. Rejecting the claim and submitting corroboration of
331	lack of reasonable grounds for medical negligence litigation in
332	accordance with s. 766.203(3) that sets forth a factual basis
333	for denial;
334	2. Making a settlement offer; or
335	3. Making an offer to arbitrate where liability will be
336	deemed admitted and the arbitration will be heldof admission of
337	liability and for arbitrationon the issue of damages. This
338	offer may be made contingent upon a limit of general damages.
339
340	Such response must include a copy of any insurance policy and
341	applicable policy limits. If the prospective defendant intends
342	to deny liability should a lawsuit be filed notwithstanding a
343	settlement offer, an affidavit corroborating lack of reasonable
344	grounds for medical negligence must be submitted that meets the
345	requirements of s. 766.203(3) and that sets forth a factual
346	basis for the denial of liability. Any response must also
347	include all affirmative defense the prospective defendant
348	intends to raise and a corroborating expert witness affidavit
349	for each potential defendant whom the responding defendant
350	contends is liable for the injuries complained of and who has
351	not been sent a notice of intent to litigate by the claimant.
352	(7) Informal discovery may be used by a party to obtain
353	swornunsworn statements, the production of documents or things,
354	and physical and mental examinations, and answers to written
355	questions,as follows:
356	(a) SwornUnsworn statements; parties.--Any party may
357	require other health care providers orparties to appear for the
358	taking of a swornan unsworn statement. Such statements may be
359	used only for the purpose of presuit screening and are not
360	discoverable or admissible in any civil action for any purpose
361	by any party. A party desiring to take the swornunsworn
362	statement of any party or health care provider must providegive
363	reasonable written notice and opportunity to be presentin
364	writingto all parties. The notice must state the time and place
365	for taking the statement and the name and address of the party
366	or health care provider to be examined. Unless otherwise
367	impractical, The examination of any party or health care
368	providermust be done at the same time by all other parties. Any
369	party or health care providermay be represented by counsel at
370	the taking of a swornan unsworn statement. A swornAn unsworn
371	statement may be recorded electronically, stenographically, or
372	on videotape. The taking of swornunswornstatements is subject
373	to the provisions of the Florida Rules of Civil Procedure and
374	may be terminated for abuses. The taking of a sworn statement
375	during presuit shall not preclude a party from updating the
376	sworn statement by deposition.
377	(b) Documents or things.--Any party may request discovery
378	of documents or things. The documents or things must be
379	produced, at the expense of the requesting party, within 20 days
380	after the date of receipt of the request. A party is required to
381	produce discoverable documents or things within that party's
382	possession or control.
383	(c) Physical and mental examinations.--A prospective
384	defendant may require an injured prospective claimant to appear
385	for examination by an appropriate health care provider. The
386	defendant shall give reasonable notice in writing to all parties
387	as to the time and place for examination. Unless otherwise
388	impractical, a prospective claimant is required to submit to
389	only one examination on behalf of all potential defendants. The
390	practicality of a single examination must be determined by the
391	nature of the potential claimant's condition, as it relates to
392	the liability of each potential defendant. Such examination
393	report is available to the parties and their attorneys upon
394	payment of the reasonable cost of reproduction and may be used
395	only for the purpose of presuit screening. Otherwise, such
396	examination report is confidential and exempt from the
397	provisions of s. 119.07(1) and s. 24(a), Art. I of the State
398	Constitution.
399	(d) Written questions.--Any party may request answers to
400	no more than thirty written questions, including subparts, which
401	shall be responded to within 20 days of receipt.
402	Section 7. Section 766.113, Florida Statutes, is amended
403	to read:
404	766.113 Settlement agreements; prohibition on restricting
405	disclosure to Division of Medical Quality Assurance.--A
406	settlement agreement involving a claim for medical malpractice
407	shall not prohibit any party to the agreement from discussing
408	the settlement amount orwith or reporting to the Division of
409	Medical Quality Assurancethe events giving rise to the claim.
410	Section 8. Subsection (4) of section 766.205, Florida
411	Statutes, is amended to read:
412	766.205 Presuit discovery of medical negligence claims and
413	defenses.--
414	(4) With the exception of sworn statements taken pursuant
415	to s. 766.106(7)(a),no statement, discussion, written document,
416	report, or other work product generated solely by the presuit
417	investigation process is discoverable or admissible in any civil
418	action for any purpose by the opposing party. All participants,
419	including, but not limited to, hospitals and other medical
420	facilities, and the officers, directors, trustees, employees,
421	and agents thereof, physicians, investigators, witnesses, and
422	employees or associates of the defendant, are immune from civil
423	liability arising from participation in the presuit
424	investigation process. Such immunity from civil liability
425	includes immunity for any acts by a medical facility in
426	connection with providing medical records pursuant to s.
427	766.204(1) regardless of whether the medical facility is or is
428	not a defendant.
429	Section 9. Effective October 1, 2003, and applicable to
430	notices of intent to litigate sent on or after that date,
431	section 766.206, Florida Statutes, is amended to read:
432	766.206 Presuit investigation of medical negligence claims
433	and defenses by court.--
434	(1) After the completion of presuit investigation by the
435	parties pursuant to s. 766.203 and any informal discovery
436	pursuant to s. 766.106, any party may file a motion in the
437	circuit court requesting the court to determine whether the
438	opposing party's claim or denial rests on a reasonable basis.
439	(2) If the court finds that the notice of intent to
440	initiate litigation mailed by the claimant is not in compliance
441	with the reasonable investigation requirements of ss. 766.201-
442	766.212, including a review of the claim and a verified written
443	medical expert opinion by an expert witness as defined in s.
444	766.202(5),the court shall dismiss the claim, and the person
445	who mailed such notice of intent, whether the claimant or the
446	claimant's attorney, shall be personally liable for all
447	attorney's fees and costs incurred during the investigation and
448	evaluation of the claim, including the reasonable attorney's
449	fees and costs of the defendant or the defendant's insurer.
450	(3) If the court finds that the response mailed by a
451	defendant rejecting the claim is not in compliance with the
452	reasonable investigation requirements of ss. 766.201-766.212,
453	including a review of the claim and a verified written medical
454	expert opinion by an expert witness as defined in s. 766.202(5),
455	the court shall strike the defendant's pleading and the case
456	will proceed to trial on the issue of damages.response, andThe
457	person who mailed such response, whether the defendant, the
458	defendant's insurer, or the defendant's attorney, shall be
459	personally liable for all attorney's fees and costs incurred
460	during the investigation and evaluation of the claim, including
461	the reasonable attorney's fees and costs of the claimant.
462	(4) If the court finds that an attorney for the claimant
463	mailed notice of intent to initiate litigation without
464	reasonable investigation, or filed a medical negligence claim
465	without first mailing such notice of intent which complies with
466	the reasonable investigation requirements, or if the court finds
467	that an attorney for a defendant mailed a response rejecting the
468	claim without reasonable investigation, the court shall submit
469	its finding in the matter to The Florida Bar for disciplinary
470	review of the attorney. Any attorney so reported three or more
471	times within a 5-year period shall be reported to a circuit
472	grievance committee acting under the jurisdiction of the Supreme
473	Court. If such committee finds probable cause to believe that an
474	attorney has violated this section, such committee shall forward
475	to the Supreme Court a copy of its finding.
476	(5)(a) If the court finds that the corroborating written
477	medical expert opinion attached to any notice of claim or intent
478	or to any response rejecting a claim lacked reasonable
479	investigation, or that the medical expert submitting the opinion
480	did not meet the expert witness qualifications as set forth in
481	s. 766.202(5),the court shall report the medical expert issuing
482	such corroborating opinion to the Division of Medical Quality
483	Assurance or its designee. If such medical expert is not a
484	resident of the state, the division shall forward such report to
485	the disciplining authority of that medical expert.
486	(b) The court shallmayrefuse to consider the testimony
487	of such an expert whose medical expert witness opinion attached
488	to any notice of intent or to any response rejecting a claimwho
489	has been disqualified three times pursuant to this section.
490	Section 10. Section 766.2075, Florida Statutes, is created
491	to read:
492	766.2075 Mandatory mediation.--
493	(1) Within 120 days after suit being filed, the parties
494	shall conduct mandatory mediation in accordance with s. 44.102,
495	if binding arbitration under s. 766.106 or s. 766.207 has not
496	been agreed to by the parties. The Florida Rules of Civil
497	Procedure shall apply to mediation held pursuant to this
498	section. During the mediation, each party shall make a demand
499	for judgment or an offer of settlement. At the conclusion of the
500	mediation, the mediator shall record the final demand and final
501	offer to provide to the court upon the rendering of a judgment.
502	(2) If a claimant rejecting the final offer of settlement
503	made during the mediation does not obtain a judgment more
504	favorable than the offer, the court shall assess the mediation
505	costs and reasonable costs, expenses, and attorney’s fees which
506	were incurred after the date of mediation. The assessment shall
507	attach to the proceeds of the claimant and shall be attributable
508	to any defendant whose final offer was more favorable than the
509	judgment.
510	(3) If the judgment obtained at trial is not more
511	favorable to a defendant than the final demand for judgment made
512	by the claimant to the defendant during mediation, the court
513	shall assess the mediation costs and reasonable costs, expenses,
514	and attorney’s fees which were incurred after the date of
515	mediation. Prejudgment interest at the rate established in s.
516	55.03 from the date of the final demand shall also be assessed.
517	The defendant and the insurer of the defendant, if any, shall be
518	liable for the costs, fees, and interest awardable under this
519	section.
520	(4) The final offer and final demand made during the
521	mediation required in this section shall be the only offer and
522	demand considered by the court in assessing costs, expenses,
523	attorney’s fees, and prejudgment interest under this section. No
524	subsequent offer or demand by either party shall apply in the
525	determination of whether sanctions will be assessed by the court
526	under this section.
527	(5) Notwithstanding any provision of law to the contrary,
528	s. 45.061 and s. 768.79 shall not be applicable to medical
529	negligence or to wrongful death cases arising out of medical
530	negligence causes of action.
531	Section 11. Notwithstanding any provision of law to the
532	contrary, in an action for damages for personal injury or
533	wrongful death arising out of medical malpractice, whether in
534	contract or tort, the trier of fact shall apportion the total
535	fault only among the claimant and all joint tortfeasors who are
536	parties to the action when the case is submitted to the jury for
537	deliberation and the rendition of a verdict.
538	Section 12. Except as otherwise provided herein, this act
539	shall take effect July 1, 2003, and shall apply to causes of
540	action filed on or after that date.