HB 0067B 2003
1	A bill to be entitled
2	An act relating to medical incidents; providing findings;
3	amending s. 46.015, F.S.; providing for a setoff of
4	amounts received by a claimant in settlements; authorizing
5	settling defendants to assign rights of contribution;
6	amending s. 120.57, F.S.; authorizing certain professional
7	boards and the Department of Health to modify or reject
8	findings of fact determined by an administrative law judge
9	which relate to the standard of care; amending s. 120.65,
10	F.S.; requiring the Division of Administrative Hearings to
11	designate administrative law judges to preside over
12	actions involving a health care practitioner; providing
13	qualifications for such administrative law judges;
14	amending s. 391.025, F.S.; providing that the Children's
15	Medical Services Act applies to infants eligible for
16	compensation under the Florida Birth-Related Neurological
17	Injury Compensation Plan; amending s. 391.029, F.S.;
18	providing that infants eligible for compensation under the
19	Florida Birth-Related Neurological Injury Compensation
20	Plan are eligible for the Children's Medical Services
21	program; requiring the plan to reimburse the program for
22	certain costs; providing a patient safety data privilege
23	and providing requirements with respect thereto; amending
24	s. 766.304, F.S.; providing that a claimant may not
25	receive compensation from the Florida Birth-Related
26	Neurological Injury Compensation Plan if damages are
27	provided pursuant to a settlement or a final judgment in a
28	civil action is entered; amending s. 766.305, F.S.;
29	revising the information required to be included in a
30	petition seeking recovery from the Florida Birth-Related
31	Neurological Injury Compensation Plan; revising
32	requirements for the service of such petitions; requiring
33	claimants to provide additional information to the
34	executive director of the Florida Birth-Related
35	Neurological Injury Compensation Association; amending s.
36	766.309, F.S.; authorizing the bifurcation of
37	administrative proceedings regarding claims for recovery
38	from the Florida Birth-Related Neurological Injury
39	Compensation Plan; amending s. 766.31, F.S.; excluding
40	Medicaid services from those compensable under the Florida
41	Birth-Related Neurological Injury Compensation Plan;
42	providing a death benefit under the plan in lieu of
43	funeral expenses; providing that if there is an award of
44	benefits under the plan, the claimants shall not be liable
45	for any attorney's fees incurred in connection with the
46	filing of a claim under ss. 766.301-766.316, F.S., other
47	than those fees awarded under this section; amending s.
48	766.314, F.S.; correcting terminology; authorizing certain
49	hospitals to pay assessments on behalf of certain health
50	care professionals; providing for the dates of coverage of
51	a participating physician; amending s. 391.035, F.S.;
52	declaring certain physicians to be agents of the
53	Department of Health for the purposes of s. 768.28, F.S.,
54	when providing services through the Children's Medical
55	Services network; requiring indemnification of the state
56	by such physicians; creating s. 395.0194, F.S.;
57	authorizing the governing boards of hospitals to reject or
58	modify medical staff recommendations or to take action
59	where the medical staff has failed to act under certain
60	circumstances; providing procedures for corrective or
61	disciplinary actions, including referral of such matters
62	to a joint conference committee appointed by the governing
63	board and the medical staff; providing for review and
64	consideration of the recommendations of the joint
65	conference committee by the governing board; amending s.
66	395.0197, F.S.; revising provisions relating to internal
67	risk management programs; repealing s. 395.0198, F.S.,
68	relating to public records exemptions for notification of
69	adverse incidents; creating s. 395.1012, F.S.; requiring
70	hospitals, ambulatory surgical centers, and mobile
71	surgical facilities to establish patient safety plans,
72	officers, and committees; creating s. 395.1051, F.S.;
73	providing for notification of injuries in a hospital,
74	ambulatory surgical center, or mobile surgical facility;
75	amending s. 415.1111, F.S.; providing that such section
76	shall not apply to actions involving allegations of
77	medical malpractice by a hospital; creating s. 408.932,
78	F.S.; requiring certain health care facilities to provide
79	notice of unanticipated outcomes of care which result in
80	serious harm to the patient to patients or the patients'
81	representatives; providing that such notice shall not
82	constitute an acknowledgment or admission of guilt and
83	shall not be introduced in any civil action; creating s.
84	456.0575, F.S.; requiring health care providers to provide
85	notice of unanticipated outcomes of care which result in
86	serious harm to the patient to patients or the patients'
87	representatives; providing that such notice shall not
88	constitute an acknowledgment or admission of guilt and
89	shall not be introduced in any civil action; authorizing
90	health care practitioner regulatory boards to adopt rules
91	to establish standards of practice for prescribing drugs
92	to patients via the Internet; amending s. 456.039, F.S.;
93	requiring additional information to be furnished to the
94	Department of Health for licensure purposes; amending s.
95	456.049, F.S.; requiring the Department of Health to
96	forward reports on professional liability claims and
97	actions to the Office of Insurance Regulation; amending s.
98	456.057, F.S.; providing an exception to the
99	confidentiality of medical information when a release has
100	been provided; authorizing the Department of Health to
101	utilize subpoenas to obtain patient records without
102	patients' consent under certain circumstances; amending s.
103	456.063, F.S.; providing for adopting rules to implement
104	requirements for reporting allegations of sexual
105	misconduct; amending s. 456.072, F.S.; revising provisions
106	assessing costs of disciplinary investigation and
107	prosecution; changing the burden of proof in certain
108	administrative actions; amending s. 456.073, F.S.;
109	providing a deadline for raising issues of material fact;
110	extending the time for the Department of Health to refer a
111	request for an administrative hearing; amending s.
112	456.077, F.S.; revising provisions relating to designation
113	of certain citation violations; amending s. 456.078, F.S.;
114	providing that violations involving standard of care may
115	be appropriate for mediation; revising provisions relating
116	to designation of certain mediation offenses; amending s.
117	458.320, F.S.; providing that a hospital shall not be
118	liable for the failure of a physician to meet financial
119	responsibility requirements; amending s. 459.0085, F.S.;
120	providing that a hospital shall not be liable for the
121	failure of a physician to meet financial responsibility
122	requirements; amending s. 458.331, F.S., relating to
123	grounds for disciplinary action of a physician; redefining
124	the term "repeated malpractice"; revising the standards
125	for the burden of proof in an administrative action
126	against a physician; revising the minimum amount of a
127	claim against a licensee which will trigger a departmental
128	investigation; amending s. 459.015, F.S., relating to
129	grounds for disciplinary action against an osteopathic
130	physician; redefining the term "repeated malpractice";
131	revising the standards for the burden of proof in an
132	administrative action against an osteopathic physician;
133	amending conditions that necessitate a departmental
134	investigation of an osteopathic physician; revising the
135	minimum amount of a claim against a licensee which will
136	trigger a departmental investigation; amending s. 460.413,
137	F.S.; revising the standards for the burden of proof in an
138	administrative action against a chiropractic physician;
139	amending s. 461.013, F.S., relating to grounds for
140	disciplinary action against a podiatric physician;
141	redefining the term "repeated malpractice"; revising the
142	minimum amount of a claim against a licensee which will
143	trigger a departmental investigation; amending s. 466.028,
144	F.S., relating to grounds for disciplinary action against
145	a dentist or a dental hygienist; redefining the term
146	"dental malpractice"; revising the minimum amount of a
147	claim against a licensee which will trigger a departmental
148	investigation; amending s. 624.155, F.S.; eliminating
149	third-party actions against insurers in certain matters
150	involving medical negligence; revising standards for
151	determination of bad faith by an insurer in medical
152	liability cases; providing factors to be considered in
153	determining whether an insurer has acted in bad faith in
154	such cases; requiring the reporting of certain judgments
155	to the Office of Insurance Regulation; providing a
156	limitation on damages recoverable in certain bad faith
157	actions; providing an exemption to certain insureds from
158	judgment liens and execution in an amount equal to sums
159	paid on behalf of such insured by a liability insurer;
160	providing that no award for attorney’s fees shall be
161	enhanced by a contingency risk multiplier in certain
162	actions relating to professional liability insurance
163	coverage for medical negligence; providing for
164	severability and applicability of the amendments to s.
165	624.155, F.S.; amending s. 627.062, F.S.; prohibiting the
166	inclusion of payments made by insurers for bad faith
167	claims in an insurer's rate base; requiring certain rate
168	filings; amending s. 627.357, F.S.; deleting the
169	prohibition against formation of medical malpractice self-
170	insurance funds; providing requirements to form a self-
171	insurance fund; providing rulemaking authority to the
172	Financial Services Commission; amending s. 627.4147, F.S.;
173	deleting the requirement that medical malpractice polices
174	authorize the insurer to admit liability without the
175	consent of the insured; amending s. 627.912, F.S.;
176	requiring certain claims information to be filed with the
177	Office of Insurance Regulation and the Department of
178	Health; providing for rulemaking by the Financial Services
179	Commission; increasing the limit on and making mandatory a
180	fine against insurers for certain actions; creating s.
181	627.41493, F.S.; requiring a medical malpractice insurance
182	rate rollback; providing a minimum percentage for the
183	average reduction in rates; providing that the decrease in
184	rates need not be uniform across specialties; providing
185	for review of such rates; providing an exception to the
186	minimum roll back required if any provision of this act is
187	declared unconstitutional by a court of competent
188	jurisdiction; creating s. 627.9121, F.S.; requiring
189	certain information relating to medical malpractice to be
190	reported to the Office of Insurance Regulation; providing
191	for enforcement; amending s. 641.19, F.S.; providing that
192	health care providers providing services pursuant to
193	coverage provided under a health maintenance organization
194	contract are not employees or agents of the health
195	maintenance organization; amending s. 641.51, F.S.;
196	providing that a health maintenance organization shall not
197	have the right to control the professional judgment of a
198	physician; providing that a health maintenance
199	organization shall not be vicariously liable for the
200	medical negligence of a health care provider; amending s.
201	766.102, F.S.; redefining the term "similar health care
202	provider"; deleting authority for certain persons to
203	testify as expert witnesses; amending s. 766.104, F.S.;
204	providing that the presuit written expert opinion received
205	by counsel for a claimant shall be subject to discovery;
206	amending s. 766.106, F.S.; providing that the presuit
207	written expert opinions received pursuant to s. 766.203,
208	F.S., shall be subject to discovery and admissible in
209	evidence; requiring medical malpractice claimants to
210	execute a medical information release that allows a
211	defendant or his or her legal representative to conduct ex
212	parte interviews with the claimant's treating physicians;
213	amending s. 766.1115, F.S.; providing that certain
214	university faculty providing health care services to
215	patients of a public hospital shall not be considered
216	agents of the hospital for the purposes of this section;
217	amending s. 766.202, F.S.; redefining the terms "economic
218	damages," "medical expert," "noneconomic damages," and
219	"periodic payment"; amending s. 766.207, F.S.; providing
220	for the applicability of the Wrongful Death Act and
221	general law to arbitration awards; providing an aggregate
222	cap on noneconomic damages which may be awarded in
223	arbitration; providing that all future damages awarded in
224	arbitration shall be paid by periodic payment and offset
225	by future collateral source payments; amending s. 766.209,
226	F.S.; providing an aggregate cap on noneconomic damages
227	which may be awarded at trial where a claimant has
228	rejected a defendant's offer to enter voluntary binding
229	arbitration; creating s. 766.213, F.S.; providing for the
230	termination of periodic payments for unincurred medical
231	expenses upon the death of the claimant; providing for the
232	payment of medical expenses incurred prior to the death of
233	the claimant; amending s. 766.309, F.S.; requiring
234	claimants filing suit for injuries determined to be
235	compensable under the Florida Birth-Related Neurological
236	Injury Compensation Plan to decline such benefits as a
237	condition of proceeding to trial; providing a timeframe
238	within which such declination must be made; amending s.
239	768.041, F.S.; providing for a setoff of amounts received
240	by a claimant in settlements; authorizing settling
241	defendants to assign rights of contribution; amending s.
242	768.13, F.S.; revising guidelines for immunity from
243	liability under the Good Samaritan Act; providing
244	legislative intent and findings with respect to the
245	provision of emergency medical services and care by care
246	providers and with respect to public hospitals and
247	affiliations with not-for-profit colleges and universities
248	with medical schools and other health practitioner
249	educational programs; amending s. 768.28, F.S., relating
250	to waiver of sovereign immunity in tort actions; revising
251	the definition of "officer, employee, or agent"; providing
252	such immunity to certain colleges and universities
253	affiliated with public hospitals while providing patient
254	services; amending s. 768.77, F.S.; prescribing a method
255	for itemization of specific categories of damages awarded
256	in medical malpractice actions; creating s. 766.1067,
257	F.S.; providing for mandatory mediation in medical
258	negligence causes of action; creating s. 766.118, F.S.;
259	providing a limitation on noneconomic damages which can be
260	awarded in causes of action involving medical negligence;
261	amending s. 768.78, F.S.; revising the means for
262	compensating medical malpractice claimants for future
263	economic and future noneconomic losses; conforming a cross
264	reference; amending ss. 766.112 and 768.81, F.S.;
265	providing that a defendant's liability for damages in
266	medical negligence cases is several only; creating s.
267	1004.08, F.S.; requiring patient safety instruction for
268	certain students in public schools, colleges, and
269	universities; creating s. 1005.07, F.S.; requiring patient
270	safety instruction for certain students in nonpublic
271	schools, colleges, and universities; requiring the
272	Department of Health to study the efficacy and
273	constitutionality of medical review panels; requiring a
274	report; requiring a report by the Agency for Health Care
275	Administration regarding information to be provided to
276	health care consumers; requiring the Office of Program
277	Policy Analysis and Government Accountability to study and
278	report to the Legislature on requirements for coverage by
279	the Florida Birth-Related Neurological Injury Compensation
280	Association; requiring the Office of Program Policy
281	Analysis and Government Accountability and the Office of
282	the Auditor General to conduct an audit, as specified, and
283	to report to the Legislature; requiring a report by the
284	Agency for Health Care Administration regarding the
285	establishment of a Patient Safety Authority; specifying
286	elements of the report; creating the Medical Injury
287	Nonjudicial Compensation Study Commission and providing
288	for its membership, organization, and duties; authorizing
289	public hearings; authorizing appointment of technical
290	advisory committees; authorizing appointment of an
291	executive director and the hiring of staff and
292	consultants; authorizing per diem and reimbursement for
293	travel expenses; requiring interim and final reports;
294	providing for termination of the commission; providing
295	severability; providing for construction of the act in
296	pari materia with laws enacted during the 2003 Regular
297	Session or the 2003 Special Session A of the Legislature;
298	providing applicability; providing an effective date.
299
300	Be It Enacted by the Legislature of the State of Florida:
301
302	Section 1. Findings.--
303	(1) The Legislature finds that Florida is in the midst of
304	a medical malpractice insurance crisis of unprecedented
305	magnitude.
306	(2) The Legislature finds that this crisis threatens the
307	quality and availability of health care for all Florida
308	citizens.
309	(3) The Legislature finds that the rapidly growing
310	population and the changing demographics of Florida make it
311	imperative that students continue to choose Florida as the place
312	they will receive their medical educations and practice
313	medicine.
314	(4) The Legislature finds that Florida is among the states
315	with the highest medical malpractice insurance premiums in the
316	nation.
317	(5) The Legislature finds that the cost of medical
318	malpractice insurance has increased dramatically during the past
319	decade and both the increase and the current cost are
320	substantially higher than the national average.
321	(6) The Legislature finds that the increase in medical
322	malpractice liability insurance rates is forcing physicians to
323	practice medicine without professional liability insurance, to
324	leave Florida, to not perform high-risk procedures, and to
325	retire early from the practice of medicine.
326	(7) The Legislature finds that there are certain elements
327	of damage presently recoverable that have no monetary value,
328	except on a purely arbitrary basis, while other elements of
329	damage are either easily measured on a monetary basis or reflect
330	ultimate monetary loss.
331	(8) The Governor created the Governor's Select Task Force
332	on Healthcare Professional Liability Insurance to study and make
333	recommendations to address these problems.
334	(9) The Legislature has reviewed the findings and
335	recommendations of the Governor's Select Task Force on
336	Healthcare Professional Liability Insurance.
337	(10) The Legislature finds that the Governor's Select Task
338	Force on Healthcare Professional Liability Insurance has
339	established that a medical malpractice crisis exists in the
340	state which can be alleviated by the adoption of comprehensive
341	legislatively enacted reforms.
342	(11) The Legislature finds that making high-quality health
343	care available to the citizens of the state is an overwhelming
344	public necessity.
345	(12) The Legislature finds that ensuring that physicians
346	continue to practice in Florida is an overwhelming public
347	necessity.
348	(13) The Legislature finds that ensuring the availability
349	of affordable professional liability insurance for physicians is
350	an overwhelming public necessity.
351	(14) The Legislature finds, based upon the findings and
352	recommendations of the Governor's Select Task Force on
353	Healthcare Professional Liability Insurance, the findings and
354	recommendations of various study groups throughout the nation,
355	and the experience of other states, that the overwhelming public
356	necessities of making quality health care available to the
357	citizens of this state, of ensuring that physicians continue to
358	practice in Florida, and of ensuring that those physicians have
359	the opportunity to purchase affordable professional liability
360	insurance cannot be met unless a cap on noneconomic damages in
361	an amount no higher than $250,000 is imposed.
362	(15) The Legislature finds that the high cost of medical
363	malpractice claims can be substantially alleviated by imposing a
364	limitation on noneconomic damages in medical malpractice
365	actions.
366	(16) The Legislature further finds that there is no
367	alternative measure of accomplishing such result without
368	imposing even greater limits upon the ability of persons to
369	recover damages for medical malpractice.
370	(17) The Legislature finds that the provisions of this act
371	are naturally and logically connected to each other and to the
372	purpose of making quality health care available to the citizens
373	of Florida.
374	(18) The Legislature finds that it is important to have a
375	comprehensive bill with all issues resolved rather than separate
376	bills.
377	(19) The Legislature finds that each of the provisions of
378	this act is necessary to alleviate the crisis relating to
379	medical malpractice insurance.
380	Section 2. Subsection (4) is added to section 46.015,
381	Florida Statutes, to read:
382	46.015 Release of parties.--
383	(4)(a) At trial pursuant to a suit filed under chapter 766
384	or pursuant to s. 766.209, or in arbitration pursuant to s.
385	766.207, if any defendant shows the court that the plaintiff, or
386	his or her legal representative, has delivered a written release
387	or covenant not to sue to any person in partial satisfaction of
388	the damages resulting from the same injury or injuries, the
389	court shall set off this amount from the amount of any judgment
390	to which the plaintiff would otherwise be entitled at the time
391	of rendering judgment, regardless of whether the jury has
392	allocated fault to the settling defendant at trial.
393	(b) The amount of any setoff under this subsection shall
394	include all sums received by the plaintiff, including economic
395	and noneconomic damages, costs, and attorney's fees, and shall
396	be applied against the total damages, after reduction for any
397	comparative negligence of the plaintiff, rather than against the
398	apportioned damages caused by a particular defendant.
399	(c) A defendant entering into a settlement agreement with
400	a plaintiff may assign any right of contribution arising under
401	s. 768.31 as a consequence of having paid more than his or her
402	proportionate share of the entire liability.
403	Section 3. Paragraph (l) of subsection (1) of section
404	120.57, Florida Statutes, is amended to read:
405	120.57 Additional procedures for particular cases.--
406	(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
407	DISPUTED ISSUES OF MATERIAL FACT.--
408	(l)1.The agency may adopt the recommended order as the
409	final order of the agency. The agency in its final order may
410	reject or modify the conclusions of law over which it has
411	substantive jurisdiction and interpretation of administrative
412	rules over which it has substantive jurisdiction. When rejecting
413	or modifying such conclusion of law or interpretation of
414	administrative rule, the agency must state with particularity
415	its reasons for rejecting or modifying such conclusion of law or
416	interpretation of administrative rule and must make a finding
417	that its substituted conclusion of law or interpretation of
418	administrative rule is as or more reasonable than that which was
419	rejected or modified. Rejection or modification of conclusions
420	of law may not form the basis for rejection or modification of
421	findings of fact. The agency may not reject or modify the
422	findings of fact unless the agency first determines from a
423	review of the entire record, and states with particularity in
424	the order, that the findings of fact were not based upon
425	competent substantial evidence or that the proceedings on which
426	the findings were based did not comply with essential
427	requirements of law. The agency may accept the recommended
428	penalty in a recommended order, but may not reduce or increase
429	it without a review of the complete record and without stating
430	with particularity its reasons therefor in the order, by citing
431	to the record in justifying the action.
432	2. Notwithstanding subparagraph 1., as a matter of law,
433	any decision involving the standard of care of a health care
434	profession regulated by any board within the Department of
435	Health is infused with overriding policy considerations that are
436	best left to the regulatory board that has jurisdiction over
437	that profession. When rejecting or modifying a recommended
438	finding of fact in standard-of-care cases, the appropriate board
439	within the Department of Health may reassess and resolve
440	conflicting evidence in a recommended order based on the record
441	in the case.
442	Section 4. Subsection (11) is added to section 120.65,
443	Florida Statutes, to read:
444	120.65 Administrative law judges.--
445	(11) The Division of Administrative Hearings shall
446	designate at least two administrative law judges who will
447	specifically preside over actions involving a health care
448	practitioner or profession as defined in s. 456.001. Each
449	designated administrative law judge shall be a member of The
450	Florida Bar in good standing and shall be a health care
451	practitioner or have experience in health care. The Division of
452	Administrative Hearings and the Department of Health shall work
453	cooperatively to enhance the effectiveness of disciplinary
454	actions involving a health care practitioner or profession as
455	defined in s. 456.001.
456	Section 5. Subsection (1) of section 391.025, Florida
457	Statutes, is amended to read:
458	391.025 Applicability and scope.--
459	(1) This act applies to health services provided to
460	eligible individuals who are:
461	(a) Enrolled in the Medicaid program.;
462	(b) Enrolled in the Florida Kidcare program.; and
463	(c) Uninsured or underinsured, provided that they meet the
464	financial eligibility requirements established in this act, and
465	to the extent that resources are appropriated for their care.;
466	and
467	(d) Infants who receive an award of compensation pursuant
468	to s. 766.31(1).
469	Section 6. Paragraph (f) is added to subsection (2) of
470	section 391.029, Florida Statutes, to read:
471	391.029 Program eligibility.--
472	(2) The following individuals are financially eligible for
473	the program:
474	(f) An infant who receives an award of compensation
475	pursuant to s. 766.31(1), provided the Florida Birth-Related
476	Neurological Injury Compensation Association shall reimburse the
477	Children's Medical Services Network the state's share of funding,
478	which funding shall be used to obtain matching federal funds
479	under Title XXI of the Social Security Act.
480
481	The department may continue to serve certain children with
482	special health care needs who are 21 years of age or older and
483	who were receiving services from the program prior to April 1,
484	1998. Such children may be served by the department until July
485	1, 2000.
486	Section 7. Patient safety data privilege.--
487	(1) As used in this section, the term:
488	(a) "Patient safety data" means reports made to patient
489	safety organizations, including all health care data,
490	interviews, memoranda, analyses, root cause analyses, products
491	of quality assurance or quality improvement processes,
492	corrective action plans, or information collected or created by
493	a health care facility licensed under chapter 395, Florida
494	Statutes, or a health care practitioner as defined in s.
495	456.001(4), Florida Statutes, as a result of an occurrence
496	related to the provision of health care services which
497	exacerbates an existing medical condition or could result in
498	injury, illness, or death.
499	(b) "Patient safety organization" means any organization,
500	group, or other entity that collects and analyzes patient safety
501	data for the purpose of improving patient safety and health care
502	outcomes and that is independent and not under the control of
503	the entity that reports patient safety data.
504	(2) Patient safety data shall not be subject to discovery
505	or introduction into evidence in any civil or administrative
506	action.
507	(3) Unless otherwise provided by law, a patient safety
508	organization shall promptly remove all patient-identifying
509	information after receipt of a complete patient safety data
510	report unless such organization is otherwise permitted by state
511	or federal law to maintain such information. Patient safety
512	organizations shall maintain the confidentiality of all patient-
513	identifying information and may not disseminate such
514	information, except as permitted by state or federal law.
515	(4) The exchange of patient safety data among health care
516	facilities licensed under chapter 395, Florida Statutes, or
517	health care practitioners as defined in s. 456.001(4), Florida
518	Statutes, or patient safety organizations which does not
519	identify any patient shall not constitute a waiver of any
520	privilege established in this section.
521	(5) Reporting of patient safety data to patient safety
522	organizations does not abrogate obligations to make reports to
523	the Department of Health, the Agency for Health Care
524	Administration, or other state or federal regulatory agencies.
525	(6) An employer may not take retaliatory action against an
526	employee who in good faith makes a report of patient safety data
527	to a patient safety organization.
528	Section 8. Section 766.304, Florida Statutes, is amended
529	to read:
530	766.304 Administrative law judge to determine claims.--The
531	administrative law judge shall hear and determine all claims
532	filed pursuant to ss. 766.301-766.316 and shall exercise the
533	full power and authority granted to her or him in chapter 120,
534	as necessary, to carry out the purposes of such sections. The
535	administrative law judge has exclusive jurisdiction to determine
536	whether a claim filed under this act is compensable. No civil
537	action may be brought until the determinations under s. 766.309
538	have been made by the administrative law judge. If the
539	administrative law judge determines that the claimant is
540	entitled to compensation from the association, no civil action
541	may be brought or continued in violation of the exclusiveness of
542	remedy provisions of s. 766.303. If it is determined that a
543	claim filed under this act is not compensable, neither the
544	doctrine of collateral estoppel nor res judicata shall prohibit
545	the claimant from pursuing any and all civil remedies available
546	under common law and statutory law. The findings of fact and
547	conclusions of law of the administrative law judge shall not be
548	admissible in any subsequent proceeding; however, the sworn
549	testimony of any person and the exhibits introduced into
550	evidence in the administrative case are admissible as
551	impeachment in any subsequent civil action only against a party
552	to the administrative proceeding, subject to the Rules of
553	Evidence. An awardaction may not be awarded or paidbrought
554	under ss. 766.301-766.316 if the claimant recovers under a
555	settlement or a final judgment is entered in a civil action. The
556	division may adopt rules to promote the efficient administration
557	of, and to minimize the cost associated with, the prosecution of
558	claims.
559	Section 9. Section 766.305, Florida Statutes, is amended
560	to read:
561	766.305 Filing of claims and responses; medical
562	disciplinary review.--
563	(1) All claims filed for compensation under the plan shall
564	commence by the claimant filing with the division a petition
565	seeking compensation. Such petition shall include the following
566	information:
567	(a) The name and address of the legal representative and
568	the basis for her or his representation of the injured infant.
569	(b) The name and address of the injured infant.
570	(c) The name and address of any physician providing
571	obstetrical services who was present at the birth and the name
572	and address of the hospital at which the birth occurred.
573	(d) A description of the disability for which the claim is
574	made.
575	(e) The time and place the injury occurred.
576	(f) A brief statement of the facts and circumstances
577	surrounding the injury and giving rise to the claim.
578	(g) All available relevant medical records relating to the
579	birth-related neurological injury, and an identification of any
580	unavailable records known to the claimant and the reasons for
581	their unavailability.
582	(h) Appropriate assessments, evaluations, and prognoses,
583	and such other records and documents as are reasonably necessary
584	for the determination of the amount of compensation to be paid
585	to, or on behalf of, the injured infant on account of the birth-
586	related neurological injury.
587	(i) Documentation of expenses and services incurred to
588	date, which indicates any payment made for such expenses and
589	services, and by whom.
590	(j) Documentation of any applicable private or
591	governmental source of services or reimbursement relative to the
592	impairments.
593	(2) The claimant shall furnish the division with as many
594	copies of the petition as required for service upon the
595	association, any physician and hospital named in the petition,
596	and the Division of Medical Quality Assurance, along with a $15
597	filing fee payable to the Division of Administrative Hearings.
598	Upon receipt of the petition, the division shall immediately
599	serve the association, by service upon the agent designated to
600	accept service on behalf of the association, by registered or
601	certified mail, and shall mail copies of the petition, by
602	registered or certified mail, to any physician, health care
603	provider, and hospital named in the petition, and furnish a copy
604	by regular mail to the Division of Medical Quality Assurance,
605	and the Agency for Health Care Administration.
606	(3) The claimant shall furnish to the executive director of
607	the Florida Birth-Related Neurological Injury Compensation
608	Association one copy of the following information which shall be
609	filed with the association within 10 days after the filing of the
610	petition as set forth in s. 766.305(1):
611	(a) All available relevant medical records relating to the
612	birth-related neurological injury and an identification of any
613	unavailable records known to the claimant and the reasons for
614	their unavailability.
615	(b) Appropriate assessments, evaluations, and prognoses and
616	such other records and documents as are reasonably necessary for
617	the determination of the amount of compensation to be paid to, or
618	on behalf of, the injured infant on account of the birth-related
619	neurological injury.
620	(c) Documentation of expenses and services incurred to
621	date, which indicates any payment made for such expenses and
622	services and by whom.
623	(d) Documentation of any applicable private or governmental
624	source of services or reimbursement relative to the impairments.
625	The information contained in paragraphs (a)-(d) is confidential
626	and exempt pursuant to the provisions of s. 766.315(5)(b).
627	(4)(3)The association shall have 45 days from the date of
628	service of a complete claim, filed pursuant to subsections (1)
629	and (2), in which to file a response to the petition and to
630	submit relevant written information relating to the issue of
631	whether the injury alleged is a birth-related neurological
632	injury.
633	(5)(4)Upon receipt of such petition, the Division of
634	Medical Quality Assurance shall review the information therein
635	and determine whether it involved conduct by a physician
636	licensed under chapter 458 or an osteopathic physician licensed
637	under chapter 459 that is subject to disciplinary action, in
638	which case the provisions of s. 456.073 shall apply.
639	(6)(5)Upon receipt of such petition, the Agency for
640	Health Care Administration shall investigate the claim, and if
641	it determines that the injury resulted from, or was aggravated
642	by, a breach of duty on the part of a hospital in violation of
643	chapter 395, it shall take any such action consistent with its
644	disciplinary authority as may be appropriate.
645	(7)(6)Any claim which the association determines to be
646	compensable may be accepted for compensation, provided that the
647	acceptance is approved by the administrative law judge to whom
648	the claim for compensation is assigned.
649	Section 10. Subsection (4) is added to section 766.309,
650	Florida Statutes, to read:
651	766.309 Determination of claims; presumption; findings of
652	administrative law judge binding on participants.--
653	(4) If it is in the interest of judicial economy or if
654	requested to by the claimant, the administrative law judge may
655	bifurcate the proceeding, addressing compensability and notice
656	pursuant to s. 766.316 first and addressing any award pursuant
657	to s. 766.31 in a separate proceeding. The administrative law
658	judge may issue a final order on compensability and notice which
659	is subject to appeal under s. 766.311, prior to issuance of an
660	award pursuant to s. 766.31.
661	Section 11. Subsection (1) of section 766.31, Florida
662	Statutes, is amended to read:
663	766.31 Administrative law judge awards for birth-related
664	neurological injuries; notice of award.--
665	(1) Upon determining that an infant has sustained a birth-
666	related neurological injury and that obstetrical services were
667	delivered by a participating physician at the birth, the
668	administrative law judge shall make an award providing
669	compensation for the following items relative to such injury:
670	(a) Actual expenses for medically necessary and reasonable
671	medical and hospital, habilitative and training, family
672	residential or custodial care, professional residential, and
673	custodial care and service, for medically necessary drugs,
674	special equipment, and facilities, and for related travel.
675	However, such expenses shall not include:
676	1. Expenses for items or services that the infant has
677	received, or is entitled to receive, under the laws of any state
678	or the Federal Government, including Medicaid,except to the
679	extent such exclusion may be prohibited by federal law.
680	2. Expenses for items or services that the infant has
681	received, or is contractually entitled to receive, from any
682	prepaid health plan, health maintenance organization, or other
683	private insuring entity.
684	3. Expenses for which the infant has received
685	reimbursement, or for which the infant is entitled to receive
686	reimbursement, under the laws of any state or the Federal
687	Government, including Medicaid,except to the extent such
688	exclusion may be prohibited by federal law.
689	4. Expenses for which the infant has received
690	reimbursement, or for which the infant is contractually entitled
691	to receive reimbursement, pursuant to the provisions of any
692	health or sickness insurance policy or other private insurance
693	program.
694
695	Expenses included under this paragraph shall be limited to
696	reasonable charges prevailing in the same community for similar
697	treatment of injured persons when such treatment is paid for by
698	the injured person.
699	(b)1. Periodic payments of an award to the parents or
700	legal guardians of the infant found to have sustained a birth-
701	related neurological injury, which award shall not exceed
702	$100,000. However, at the discretion of the administrative law
703	judge, such award may be made in a lump sum.
704	2. A death benefit for the infant in an amount of $10,000
705	Payment for funeral expenses not to exceed $1,500.
706	(c) Reasonable expenses incurred in connection with the
707	filing of a claim under ss. 766.301-766.316, including
708	reasonable attorney's fees, which shall be subject to the
709	approval and award of the administrative law judge. In
710	determining an award for attorney's fees, the administrative law
711	judge shall consider the following factors:
712	1. The time and labor required, the novelty and difficulty
713	of the questions involved, and the skill requisite to perform
714	the legal services properly.
715	2. The fee customarily charged in the locality for similar
716	legal services.
717	3. The time limitations imposed by the claimant or the
718	circumstances.
719	4. The nature and length of the professional relationship
720	with the claimant.
721	5. The experience, reputation, and ability of the lawyer
722	or lawyers performing services.
723	6. The contingency or certainty of a fee.
724
725	If there is an award of benefits under the plan, the claimants
726	shall not be liable for any attorney's fees incurred in
727	connection with the filing of a claim under ss. 766.301-766.316
728	other than those fees awarded under this section.
729	Section 12. Subsection (4) and paragraph (a) of subsection
730	(5) of section 766.314, Florida Statutes, are amended to read:
731	766.314 Assessments; plan of operation.--
732	(4) The following persons and entities shall pay into the
733	association an initial assessment in accordance with the plan of
734	operation:
735	(a) On or before October 1, 1988, each hospital licensed
736	under chapter 395 shall pay an initial assessment of $50 per
737	infant delivered in the hospital during the prior calendar year,
738	as reported to the Agency for Health Care Administration;
739	provided, however, that a hospital owned or operated by the
740	state or a county, special taxing district, or other political
741	subdivision of the state shall not be required to pay the
742	initial assessment or any assessment required by subsection (5).
743	The term "infant delivered" includes live births and not
744	stillbirths, but the term does not include infants delivered by
745	employees or agents of the board of trustees of a state
746	universityRegentsor those born in a teaching hospital as
747	defined in s. 408.07. The initial assessment and any assessment
748	imposed pursuant to subsection (5) may not include any infant
749	born to a charity patient (as defined by rule of the Agency for
750	Health Care Administration) or born to a patient for whom the
751	hospital receives Medicaid reimbursement, if the sum of the
752	annual charges for charity patients plus the annual Medicaid
753	contractuals of the hospital exceeds 10 percent of the total
754	annual gross operating revenues of the hospital. The hospital is
755	responsible for documenting, to the satisfaction of the
756	association, the exclusion of any birth from the computation of
757	the assessment. Upon demonstration of financial need by a
758	hospital, the association may provide for installment payments
759	of assessments.
760	(b)1. On or before October 15, 1988, all physicians
761	licensed pursuant to chapter 458 or chapter 459 as of October 1,
762	1988, other than participating physicians, shall be assessed an
763	initial assessment of $250, which must be paid no later than
764	December 1, 1988.
765	2. Any such physician who becomes licensed after September
766	30, 1988, and before January 1, 1989, shall pay into the
767	association an initial assessment of $250 upon licensure.
768	3. Any such physician who becomes licensed on or after
769	January 1, 1989, shall pay an initial assessment equal to the
770	most recent assessment made pursuant to this paragraph,
771	paragraph (5)(a), or paragraph (7)(b).
772	4. However, if the physician is a physician specified in
773	this subparagraph, the assessment is not applicable:
774	a. A resident physician, assistant resident physician, or
775	intern in an approved postgraduate training program, as defined
776	by the Board of Medicine or the Board of Osteopathic Medicine by
777	rule;
778	b. A retired physician who has withdrawn from the practice
779	of medicine but who maintains an active license as evidenced by
780	an affidavit filed with the Department of Health. Prior to
781	reentering the practice of medicine in this state, a retired
782	physician as herein defined must notify the Board of Medicine or
783	the Board of Osteopathic Medicine and pay the appropriate
784	assessments pursuant to this section;
785	c. A physician who holds a limited license pursuant to s.
786	458.317 and who is not being compensated for medical services;
787	d. A physician who is employed full time by the United
788	States Department of Veterans Affairs and whose practice is
789	confined to United States Department of Veterans Affairs
790	hospitals; or
791	e. A physician who is a member of the Armed Forces of the
792	United States and who meets the requirements of s. 456.024.
793	f. A physician who is employed full time by the State of
794	Florida and whose practice is confined to state-owned
795	correctional institutions, a county health department, or state-
796	owned mental health or developmental services facilities, or who
797	is employed full time by the Department of Health.
798	(c) On or before December 1, 1988, each physician licensed
799	pursuant to chapter 458 or chapter 459 who wishes to participate
800	in the Florida Birth-Related Neurological Injury Compensation
801	Plan and who otherwise qualifies as a participating physician
802	under ss. 766.301-766.316 shall pay an initial assessment of
803	$5,000. However, if the physician is either a resident
804	physician, assistant resident physician, or intern in an
805	approved postgraduate training program, as defined by the Board
806	of Medicine or the Board of Osteopathic Medicine by rule, and is
807	supervised in accordance with program requirements established
808	by the Accreditation Council for Graduate Medical Education or
809	the American Osteopathic Association by a physician who is
810	participating in the plan, such resident physician, assistant
811	resident physician, or intern is deemed to be a participating
812	physician without the payment of the assessment. Participating
813	physicians also include any employee of the board of trustees of
814	a state universityRegentswho has paid the assessment required
815	by this paragraph and paragraph (5)(a), and any certified nurse
816	midwife supervised by such employee. Participating physicians
817	include any certified nurse midwife who has paid 50 percent of
818	the physician assessment required by this paragraph and
819	paragraph (5)(a) and who is supervised by a participating
820	physician who has paid the assessment required by this paragraph
821	and paragraph (5)(a). Supervision for nurse midwives shall
822	require that the supervising physician will be easily available
823	and have a prearranged plan of treatment for specified patient
824	problems which the supervised certified nurse midwife may carry
825	out in the absence of any complicating features. Any physician
826	who elects to participate in such plan on or after January 1,
827	1989, who was not a participating physician at the time of such
828	election to participate and who otherwise qualifies as a
829	participating physician under ss. 766.301-766.316 shall pay an
830	additional initial assessment equal to the most recent
831	assessment made pursuant to this paragraph, paragraph (5)(a), or
832	paragraph (7)(b).
833	(d) Any hospital located in any county with a gross
834	population in excess of 1.1 million as of January 1, 2003, as
835	determined by the Agency for Health Care Administration, pursuant
836	to the Health Care Responsibility Act, may elect to pay the fee
837	for the participating physician and the certified nurse midwife
838	if the hospital first determines that the primary motivating
839	purpose for making such payment is to ensure coverage for the
840	hospital's patients under the provisions of ss. 766.301-766.316,
841	provided no hospital may restrict any participating physician or
842	certified nurse midwife, directly or indirectly, from being on
843	the staff of hospitals other than the staff of the hospital
844	making such payment. Each hospital shall file with the
845	association an affidavit setting forth specifically the reasons
846	why such hospital elected to make such payment on behalf of each
847	participating physician and certified nurse midwife. The payments
848	authorized pursuant to this paragraph shall be in addition to the
849	assessment set forth in paragraph (5)(a).
850	(5)(a) Beginning January 1, 1990, the persons and entities
851	listed in paragraphs (4)(b) and (c), except those persons or
852	entities who are specifically excluded from said provisions, as
853	of the date determined in accordance with the plan of operation,
854	taking into account persons licensed subsequent to the payment
855	of the initial assessment, shall pay an annual assessment in the
856	amount equal to the initial assessments provided in paragraphs
857	(4)(b) and (c). If the payment of such annual assessment by a
858	participating physician is not received by the association by
859	January 31 of any calendar year, the participating physician
860	shall only qualify as a participating physician for that
861	calendar year from the date the payment was received by the
862	association.On January 1, 1991, and on each January 1
863	thereafter, the association shall determine the amount of
864	additional assessments necessary pursuant to subsection (7), in
865	the manner required by the plan of operation, subject to any
866	increase determined to be necessary by the Department of
867	Insurance pursuant to paragraph (7)(b). On July 1, 1991, and on
868	each July 1 thereafter, the persons and entities listed in
869	paragraphs (4)(b) and (c), except those persons or entities who
870	are specifically excluded from said provisions, shall pay the
871	additional assessments which were determined on January 1.
872	Beginning January 1, 1990, the entities listed in paragraph
873	(4)(a), including those licensed on or after October 1, 1988,
874	shall pay an annual assessment of $50 per infant delivered
875	during the prior calendar year. The additional assessments which
876	were determined on January 1, 1991, pursuant to the provisions
877	of subsection (7) shall not be due and payable by the entities
878	listed in paragraph (4)(a) until July 1.
879	Section 13. Subsection (4) is added to section 391.035,
880	Florida Statutes, to read:
881	391.035 Provider qualifications.--
882	(4) A physician licensed under chapter 458 or chapter 459
883	who is approved by the department under this section shall be
884	deemed an agent of the department and shall be covered by state
885	liability protection in accordance with s. 768.28 when
886	providing health care services to participants in accordance
887	with department rules and guidelines and protocols of the
888	Children's Medical Services. When such health care services are
889	provided under contract with the department, the contract shall
890	provide for the indemnification of the state by the agent for
891	any liabilities incurred up to the limits set out in chapter
892	768.
893	Section 14. Section 395.0194, Florida Statutes, is created
894	to read:
895	395.0194 Licensed facilities; quality assurance
896	responsibilities of governing board.--
897	(1) A governing board's authority for the administration
898	of the hospital is not limited by the authority of its medical
899	staff. Therefore, a governing board may reject or modify a
900	medical staff recommendation or may, if the medical staff has
901	failed to act, take action independent of the medical staff
902	concerning medical staff membership, clinical privileges, peer
903	review, patient safety, and quality assurance.
904	(2) To the extent a governing board seeks to modify a
905	medical staff recommendation, or where a medical staff has
906	failed to act within 75 days after a request from the governing
907	board to take action against, or with regard to, an individual
908	physician concerning medical staff membership, clinical
909	privileges, peer review, or quality assurance, a governing board
910	may take action independent of the actions of the medical staff.
911	If no existing bylaw provision exists and if, after any informal
912	interview, the governing board determines that corrective or
913	disciplinary action is necessary, it shall recommend such action
914	to a six-member joint conference committee composed of three
915	members of the governing board, to be appointed by the chair of
916	the governing board, and three members of the medical staff, to
917	be appointed by the chair or president of the medical staff. The
918	joint conference committee shall, within 15 days after the
919	governing board's decision, conduct a fair hearing in which the
920	physician is entitled to be represented by counsel, to be
921	afforded an opportunity to present oral and written argument in
922	response to the corrective or disciplinary action proposed, and
923	to comment upon and cross-examine witnesses and evidence against
924	such physician and notify the governing board that the joint
925	conference committee accepts, rejects, or cannot reach a
926	majority consensus concerning the governing board's
927	recommendation. If the joint conference committee's
928	recommendation is to accept the governing board's
929	recommendation, the governing board's decision shall be final.
930	If the joint conference committee rejects the governing board's
931	recommendation and suggests an alternative corrective or
932	disciplinary action, or finds that no corrective or disciplinary
933	action is warranted, the governing board shall not unreasonably
934	reject the joint conference committee's recommendation. If the
935	joint conference committee cannot reach a majority consensus to
936	either accept or reject the governing board's action concerning
937	the fair hearing decision, the governing board's action shall be
938	final. The governing board shall give full and complete
939	consideration to the joint conference committee’s
940	recommendations.
941	Section 15. Section 395.0197, Florida Statutes, is amended
942	to read:
943	395.0197 Internal risk management program.--
944	(1) Every licensed facility shall, as a part of its
945	administrative functions, establish an internal risk management
946	program that includes all of the following components:
947	(a) The investigation and analysis of the frequency and
948	causes of general categories and specific types of adverse
949	incidents to patients.
950	(b) The development of appropriate measures to minimize
951	the risk of adverse incidents to patients, including, but not
952	limited to:
953	1. Risk management and risk prevention education and
954	training of all nonphysician personnel as follows:
955	a. Such education and training of all nonphysician
956	personnel as part of their initial orientation; and
957	b. At least 1 hour of such education and training annually
958	for all personnel of the licensed facility working in clinical
959	areas and providing patient care, except those persons licensed
960	as health care practitioners who are required to complete
961	continuing education coursework pursuant to chapter 456 or the
962	respective practice act.
963	2. A prohibition, except when emergency circumstances
964	require otherwise, against a staff member of the licensed
965	facility attending a patient in the recovery room, unless the
966	staff member is authorized to attend the patient in the recovery
967	room and is in the company of at least one other person.
968	However, a licensed facility is exempt from the two-person
969	requirement if it has:
970	a. Live visual observation;
971	b. Electronic observation; or
972	c. Any other reasonable measure taken to ensure patient
973	protection and privacy.
974	3. A prohibition against an unlicensed person from
975	assisting or participating in any surgical procedure unless the
976	facility has authorized the person to do so following a
977	competency assessment, and such assistance or participation is
978	done under the direct and immediate supervision of a licensed
979	physician and is not otherwise an activity that may only be
980	performed by a licensed health care practitioner.
981	4. Development, implementation, and ongoing evaluation of
982	procedures, protocols, and systems to accurately identify
983	patients, planned procedures, and the correct site of the
984	planned procedure so as to minimize the performance of a
985	surgical procedure on the wrong patient, a wrong surgical
986	procedure, a wrong-site surgical procedure, or a surgical
987	procedure otherwise unrelated to the patient's diagnosis or
988	medical condition.
989	(c) The analysis of patient grievances that relate to
990	patient care and the quality of medical services.
991	(d) The development and implementation of an incident
992	reporting system based upon the affirmative duty of all health
993	care providers and all agents and employees of the licensed
994	health care facility to report adverse incidents to the risk
995	manager, or to his or her designee, within 3 business days after
996	their occurrence.
997	(2) The internal risk management program is the
998	responsibility of the governing board of the health care
999	facility. Each licensed facility shall hire a risk manager,
1000	licensed under s. 395.10974, who is responsible for
1001	implementation and oversight of such facility's internal risk
1002	management program as required by this section. A risk manager
1003	must not be made responsible for more than four internal risk
1004	management programs in separate licensed facilities, unless the
1005	facilities are under one corporate ownership or the risk
1006	management programs are in rural hospitals.
1007	(3) In addition to the programs mandated by this section,
1008	other innovative approaches intended to reduce the frequency and
1009	severity of medical malpractice and patient injury claims shall
1010	be encouraged and their implementation and operation
1011	facilitated. Such additional approaches may include extending
1012	internal risk management programs to health care providers'
1013	offices and the assuming of provider liability by a licensed
1014	health care facility for acts or omissions occurring within the
1015	licensed facility.
1016	(4) The agency shall adopt rules governing the
1017	establishment of internal risk management programs to meet the
1018	needs of individual licensed facilities. Each internal risk
1019	management program shall include the use of incident reports to
1020	be filed with an individual of responsibility who is competent
1021	in risk management techniques in the employ of each licensed
1022	facility, such as an insurance coordinator, or who is retained
1023	by the licensed facility as a consultant. The individual
1024	responsible for the risk management program shall have free
1025	access to all medical records of the licensed facility. The
1026	incident reports are part of the workpapers of the attorney
1027	defending the licensed facility in litigation relating to the
1028	licensed facility and are subject to discovery, but are not
1029	admissible as evidence in court. A person filing an incident
1030	report is not subject to civil suit by virtue of such incident
1031	report. As a part of each internal risk management program, the
1032	incident reports shall be used to develop categories of
1033	incidents which identify problem areas. Once identified,
1034	procedures shall be adjusted to correct the problem areas.
1035	(5) For purposes of reporting to the agency pursuant to
1036	this section, the term "adverse incident" means an event over
1037	which health care personnel could exercise control and which is
1038	associated in whole or in part with medical intervention, rather
1039	than the condition for which such intervention occurred, and
1040	which:
1041	(a) Results in one of the following injuries:
1042	1. Death;
1043	2. Brain or spinal damage;
1044	3. Permanent disfigurement;
1045	4. Fracture or dislocation of bones or joints;
1046	5. A resulting limitation of neurological, physical, or
1047	sensory function which continues after discharge from the
1048	facility;
1049	6. Any condition that required specialized medical
1050	attention or surgical intervention resulting from nonemergency
1051	medical intervention, other than an emergency medical condition,
1052	to which the patient has not given his or her informed consent;
1053	or
1054	7. Any condition that required the transfer of the
1055	patient, within or outside the facility, to a unit providing a
1056	more acute level of care due to the adverse incident, rather
1057	than the patient's condition prior to the adverse incident;
1058	(b) Was the performance of a surgical procedure on the
1059	wrong patient, a wrong surgical procedure, a wrong-site surgical
1060	procedure, or a surgical procedure otherwise unrelated to the
1061	patient's diagnosis or medical condition;
1062	(c) Required the surgical repair of damage resulting to a
1063	patient from a planned surgical procedure, where the damage was
1064	not a recognized specific risk, as disclosed to the patient and
1065	documented through the informed-consent process; or
1066	(d) Was a procedure to remove unplanned foreign objects
1067	remaining from a surgical procedure.
1068	(6)(a) Each licensed facility subject to this section
1069	shall submit an annual report to the agency summarizing the
1070	incident reports that have been filed in the facility for that
1071	year. The report shall include:
1072	1. The total number of adverse incidents.
1073	2. A listing, by category, of the types of operations,
1074	diagnostic or treatment procedures, or other actions causing the
1075	injuries, and the number of incidents occurring within each
1076	category.
1077	3. A listing, by category, of the types of injuries caused
1078	and the number of incidents occurring within each category.
1079	4. A code number using the health care professional's
1080	licensure number and a separate code number identifying all
1081	other individuals directly involved in adverse incidents to
1082	patients, the relationship of the individual to the licensed
1083	facility, and the number of incidents in which each individual
1084	has been directly involved. Each licensed facility shall
1085	maintain names of the health care professionals and individuals
1086	identified by code numbers for purposes of this section.
1087	5. A description of all malpractice claims filed against
1088	the licensed facility, including the total number of pending and
1089	closed claims and the nature of the incident which led to, the
1090	persons involved in, and the status and disposition of each
1091	claim.
1092	6. The name and judgments entered against each health care
1093	practitioner for which the facility assumes liability pursuant
1094	to subsection (3).
1095
1096	Each report shall update status and disposition for all prior
1097	reports.
1098	(b) The information reported to the agency pursuant to
1099	paragraph (a) which relates to persons licensed under chapter
1100	458, chapter 459, chapter 461, or chapter 466 shall be reviewed
1101	by the agency. The agency shall determine whether any of the
1102	incidents potentially involved conduct by a health care
1103	professional who is subject to disciplinary action, in which
1104	case the provisions of s. 456.073 shall apply.
1105	(c) The report submitted to the agency shall also contain
1106	the name and license number of the risk manager of the licensed
1107	facility, a copy of its policy and procedures which govern the
1108	measures taken by the facility and its risk manager to reduce
1109	the risk of injuries and adverse incidents, and the results of
1110	such measures. The annual report is confidential and is not
1111	available to the public pursuant to s. 119.07(1) or any other
1112	law providing access to public records. The annual report is not
1113	discoverable or admissible in any civil or administrative
1114	action, except in disciplinary proceedings by the agency or the
1115	appropriate regulatory board. The annual report is not available
1116	to the public as part of the record of investigation for and
1117	prosecution in disciplinary proceedings made available to the
1118	public by the agency or the appropriate regulatory board.
1119	However, the agency or the appropriate regulatory board shall
1120	make available, upon written request by a health care
1121	professional against whom probable cause has been found, any
1122	such records which form the basis of the determination of
1123	probable cause.
1124	(7) The licensed facility shall notify the agency no later
1125	than 1 business day after the risk manager or his or her
1126	designee has received a report pursuant to paragraph (1)(d) and
1127	can determine within 1 business day that any of the following
1128	adverse incidents has occurred, whether occurring in the
1129	licensed facility or arising from health care prior to admission
1130	in the licensed facility:
1131	(a) The death of a patient;
1132	(b) Brain or spinal damage to a patient;
1133	(c) The performance of a surgical procedure on the wrong
1134	patient;
1135	(d) The performance of a wrong-site surgical procedure; or
1136	(e) The performance of a wrong surgical procedure.
1137
1138	The notification must be made in writing and be provided by
1139	facsimile device or overnight mail delivery. The notification
1140	must include information regarding the identity of the affected
1141	patient, the type of adverse incident, the initiation of an
1142	investigation by the facility, and whether the events causing or
1143	resulting in the adverse incident represent a potential risk to
1144	other patients.
1145	(7)(8)Any of the following adverse incidents, whether
1146	occurring in the licensed facility or arising from health care
1147	prior to admission in the licensed facility, shall be reported
1148	by the facility to the agency within 15 calendar days after its
1149	occurrence:
1150	(a) The death of a patient;
1151	(b) Brain or spinal damage to a patient;
1152	(c) The performance of a surgical procedure on the wrong
1153	patient;
1154	(d) The performance of a wrong-site surgical procedure;
1155	(e) The performance of a wrong surgical procedure;
1156	(f) The performance of a surgical procedure that is
1157	medically unnecessary or otherwise unrelated to the patient's
1158	diagnosis or medical condition;
1159	(g) The surgical repair of damage resulting to a patient
1160	from a planned surgical procedure, where the damage is not a
1161	recognized specific risk, as disclosed to the patient and
1162	documented through the informed-consent process; or
1163	(h) The performance of procedures to remove unplanned
1164	foreign objects remaining from a surgical procedure.
1165
1166	The agency may grant extensions to this reporting requirement
1167	for more than 15 days upon justification submitted in writing by
1168	the facility administrator to the agency. The agency may require
1169	an additional, final report. These reports shall not be
1170	available to the public pursuant to s. 119.07(1) or any other
1171	law providing access to public records, nor be discoverable or
1172	admissible in any civil or administrative action, except in
1173	disciplinary proceedings by the agency or the appropriate
1174	regulatory board, nor shall they be available to the public as
1175	part of the record of investigation for and prosecution in
1176	disciplinary proceedings made available to the public by the
1177	agency or the appropriate regulatory board. However, the agency
1178	or the appropriate regulatory board shall make available, upon
1179	written request by a health care professional against whom
1180	probable cause has been found, any such records which form the
1181	basis of the determination of probable cause. The agency may
1182	investigate, as it deems appropriate, any such incident and
1183	prescribe measures that must or may be taken in response to the
1184	incident. The agency shall review each incident and determine
1185	whether it potentially involved conduct by the health care
1186	professional who is subject to disciplinary action, in which
1187	case the provisions of s. 456.073 shall apply.
1188	(8)(9)The agency shall publish on the agency's website,
1189	no less than quarterly, a summary and trend analysis of adverse
1190	incident reports received pursuant to this section, which shall
1191	not include information that would identify the patient, the
1192	reporting facility, or the health care practitioners involved.
1193	The agency shall publish on the agency's website an annual
1194	summary and trend analysis of all adverse incident reports and
1195	malpractice claims information provided by facilities in their
1196	annual reports, which shall not include information that would
1197	identify the patient, the reporting facility, or the
1198	practitioners involved. The purpose of the publication of the
1199	summary and trend analysis is to promote the rapid dissemination
1200	of information relating to adverse incidents and malpractice
1201	claims to assist in avoidance of similar incidents and reduce
1202	morbidity and mortality.
1203	(9)(10)The internal risk manager of each licensed
1204	facility shall:
1205	(a) Investigate every allegation of sexual misconduct
1206	which is made against a member of the facility's personnel who
1207	has direct patient contact, when the allegation is that the
1208	sexual misconduct occurred at the facility or on the grounds of
1209	the facility.
1210	(b) Report every allegation of sexual misconduct to the
1211	administrator of the licensed facility.
1212	(c) Notify the family or guardian of the victim, if a
1213	minor, that an allegation of sexual misconduct has been made and
1214	that an investigation is being conducted.
1215	(d) Report to the Department of Health every allegation of
1216	sexual misconduct, as defined in chapter 456 and the respective
1217	practice act, by a licensed health care practitioner that
1218	involves a patient.
1219	(10)(11)Any witness who witnessed or who possesses actual
1220	knowledge of the act that is the basis of an allegation of
1221	sexual abuse shall:
1222	(a) Notify the local police; and
1223	(b) Notify the hospital risk manager and the
1224	administrator.
1225
1226	For purposes of this subsection, "sexual abuse" means acts of a
1227	sexual nature committed for the sexual gratification of anyone
1228	upon, or in the presence of, a vulnerable adult, without the
1229	vulnerable adult's informed consent, or a minor. "Sexual abuse"
1230	includes, but is not limited to, the acts defined in s.
1231	794.011(1)(h), fondling, exposure of a vulnerable adult's or
1232	minor's sexual organs, or the use of the vulnerable adult or
1233	minor to solicit for or engage in prostitution or sexual
1234	performance. "Sexual abuse" does not include any act intended
1235	for a valid medical purpose or any act which may reasonably be
1236	construed to be a normal caregiving action.
1237	(11)(12)A person who, with malice or with intent to
1238	discredit or harm a licensed facility or any person, makes a
1239	false allegation of sexual misconduct against a member of a
1240	licensed facility's personnel is guilty of a misdemeanor of the
1241	second degree, punishable as provided in s. 775.082 or s.
1242	775.083.
1243	(12) If appropriate, a licensed facility in which sexual
1244	abuse occurs must offer the victim of sexual abuse testing for
1245	sexually transmissible diseases and shall provide all such
1246	testing at no cost to the victim.
1247	(13) In addition to any penalty imposed pursuant to this
1248	section, the agency shall require a written plan of correction
1249	from the facility. For a single incident or series of isolated
1250	incidents that are nonwillful violations of the reporting
1251	requirements of this section, the agency shall first seek to
1252	obtain corrective action by the facility. If the correction is
1253	not demonstrated within the timeframe established by the agency
1254	or if there is a pattern of nonwillful violations of this
1255	section, the agency may impose an administrative fine, not to
1256	exceed $5,000 for any violation of the reporting requirements of
1257	this section. The administrative fine for repeated nonwillful
1258	violations shall not exceed $10,000 for any violation. The
1259	administrative fine for each intentional and willful violation
1260	may not exceed $25,000 per violation, per day. The fine for an
1261	intentional and willful violation of this section may not exceed
1262	$250,000. In determining the amount of fine to be levied, the
1263	agency shall be guided by s. 395.1065(2)(b). This subsection
1264	does not apply to the notice requirements under subsection (7).
1265	(14) The agency shall have access to all licensed facility
1266	records necessary to carry out the provisions of this section.
1267	The records obtained by the agency under subsection (6),
1268	subsection (7)(8), or subsection (9)(10)are not available to
1269	the public under s. 119.07(1), nor shall they be discoverable or
1270	admissible in any civil or administrative action, except in
1271	disciplinary proceedings by the agency or the appropriate
1272	regulatory board, nor shall records obtained pursuant to s.
1273	456.071 be available to the public as part of the record of
1274	investigation for and prosecution in disciplinary proceedings
1275	made available to the public by the agency or the appropriate
1276	regulatory board. However, the agency or the appropriate
1277	regulatory board shall make available, upon written request by a
1278	health care professional against whom probable cause has been
1279	found, any such records which form the basis of the
1280	determination of probable cause, except that, with respect to
1281	medical review committee records, s. 766.101 controls.
1282	(15) The meetings of the committees and governing board of
1283	a licensed facility held solely for the purpose of achieving the
1284	objectives of risk management as provided by this section shall
1285	not be open to the public under the provisions of chapter 286.
1286	The records of such meetings are confidential and exempt from s.
1287	119.07(1), except as provided in subsection (14).
1288	(16) The agency shall review, as part of its licensure
1289	inspection process, the internal risk management program at each
1290	licensed facility regulated by this section to determine whether
1291	the program meets standards established in statutes and rules,
1292	whether the program is being conducted in a manner designed to
1293	reduce adverse incidents, and whether the program is
1294	appropriately reporting incidents under this section.
1295	(17) There shall be no monetary liability on the part of,
1296	and no cause of action for damages shall arise against, any risk
1297	manager, licensed under s. 395.10974, for the implementation and
1298	oversight of the internal risk management program in a facility
1299	licensed under this chapter or chapter 390 as required by this
1300	section, for any act or proceeding undertaken or performed
1301	within the scope of the functions of such internal risk
1302	management program if the risk manager acts without intentional
1303	fraud.
1304	(18) A privilege against civil liability is hereby granted
1305	to any licensed risk manager or licensed facility with regard to
1306	information furnished pursuant to this chapter, unless the
1307	licensed risk manager or facility acted in bad faith or with
1308	malice in providing such information.
1309	(19) If the agency, through its receipt of any reports
1310	required under this section or through any investigation, has a
1311	reasonable belief that conduct by a staff member or employee of
1312	a licensed facility is grounds for disciplinary action by the
1313	appropriate regulatory board, the agency shall report this fact
1314	to such regulatory board.
1315	(20) It shall be unlawful for any person to coerce,
1316	intimidate, or preclude a risk manager from lawfully executing
1317	his or her reporting obligations pursuant to this chapter. Such
1318	unlawful action shall be subject to civil monetary penalties not
1319	to exceed $10,000 per violation.
1320	Section 16. Section 395.0198, Florida Statutes, is
1321	repealed.
1322	Section 17. Section 395.1012, Florida Statutes, is created
1323	to read:
1324	395.1012 Patient safety.--
1325	(1) Each licensed facility shall adopt a patient safety
1326	plan. A plan adopted to implement the requirements of 42 C.F.R.
1327	s. 482.21 shall be deemed to comply with this requirement.
1328	(2) Each licensed facility shall appoint a patient safety
1329	officer and a patient safety committee, which shall include at
1330	least one person who is neither employed by nor practicing in
1331	the facility, for the purpose of promoting the health and safety
1332	of patients, reviewing and evaluating the quality of patient
1333	safety measures used by the facility, and assisting in the
1334	implementation of the facility patient safety plan.
1335	Section 18. Section 395.1051, Florida Statutes, is created
1336	to read:
1337	395.1051 Duty to notify patients.--Every licensed facility
1338	shall inform each patient, or an individual identified pursuant
1339	to s. 765.401(1), in person about unanticipated outcomes of care
1340	that result in serious harm to the patient. Notification of
1341	outcomes of care that result in harm to the patient under this
1342	section shall neither constitute an acknowledgement or admission
1343	of liability, nor be introduced as evidence in any civil
1344	lawsuit.
1345	Section 19. Section 415.1111, Florida Statutes, is amended
1346	to read:
1347	415.1111 Civil actions.--A vulnerable adult who has been
1348	abused, neglected, or exploited as specified in this chapter has
1349	a cause of action against any perpetrator and may recover actual
1350	and punitive damages for such abuse, neglect, or exploitation.
1351	The action may be brought by the vulnerable adult, or that
1352	person's guardian, by a person or organization acting on behalf
1353	of the vulnerable adult with the consent of that person or that
1354	person's guardian, or by the personal representative of the
1355	estate of a deceased victim without regard to whether the cause
1356	of death resulted from the abuse, neglect, or exploitation. The
1357	action may be brought in any court of competent jurisdiction to
1358	enforce such action and to recover actual and punitive damages
1359	for any deprivation of or infringement on the rights of a
1360	vulnerable adult. A party who prevails in any such action may be
1361	entitled to recover reasonable attorney's fees, costs of the
1362	action, and damages. The remedies provided in this section are
1363	in addition to and cumulative with other legal and
1364	administrative remedies available to a vulnerable adult.
1365	Notwithstanding the foregoing, any civil action for damages
1366	against any licensee or entity who establishes, controls,
1367	conducts, manages, or operates a facility licensed under part II
1368	of chapter 400 relating to its operation of the licensed
1369	facility shall be brought pursuant to s. 400.023, or against any
1370	licensee or entity who establishes, controls, conducts, manages,
1371	or operates a facility licensed under part III of chapter 400
1372	relating to its operation of the licensed facility shall be
1373	brought pursuant to s. 400.429. Notwithstanding the foregoing,
1374	any claim that qualifies as a claim for medical malpractice, as
1375	defined in s. 766.106(1)(a), against any licensee or entity who
1376	establishes, controls, conducts, manages, or operates a facility
1377	licensed under chapter 395 shall be brought pursuant to chapter
1378	766.Such licensee or entity shall not be vicariously liable for
1379	the acts or omissions of its employees or agents or any other
1380	third party in an action brought under this section.
1381	Section 20. Section 408.932, Florida Statutes, is created
1382	to read:
1383	408.932 Duty to notify patients.--Each facility licensed
1384	by the Agency for Health Care Administration, except facilities
1385	licensed pursuant to chapter 395, shall inform each patient or
1386	the patient’s representative in person about unanticipated
1387	outcomes of care which result in serious harm to the patient.
1388	Notification of outcomes of care which result in serious harm to
1389	the patient under this section shall neither constitute an
1390	acknowledgment or admission of liability nor be introduced as
1391	evidence in any civil lawsuit.
1392	Section 21. Section 456.0575, Florida Statutes, is created
1393	to read:
1394	456.0575 Duty to notify patients.–-Every licensed health
1395	care provider shall inform each patient or the patient’s
1396	representative in person about unanticipated outcomes of care
1397	which result in serious harm to the patient. Notification of
1398	outcomes of care which result in serious harm to the patient
1399	under this section shall neither constitute an acknowledgment or
1400	admission of liability nor be introduced as evidence in any
1401	civil lawsuit.
1402	Section 22. Each board within the Department of Health
1403	which has jurisdiction over health care practitioners who are
1404	authorized to prescribe drugs may adopt by rule standards of
1405	practice for practitioners who are under that board's
1406	jurisdiction for the safe and ethical prescription of drugs to
1407	patients via the Internet.
1408	Section 23. Paragraph (a) of subsection (1) of section
1409	456.039, Florida Statutes, is amended to read:
1410	456.039 Designated health care professionals; information
1411	required for licensure.--
1412	(1) Each person who applies for initial licensure as a
1413	physician under chapter 458, chapter 459, chapter 460, or
1414	chapter 461, except a person applying for registration pursuant
1415	to ss. 458.345 and 459.021, must, at the time of application,
1416	and each physician who applies for license renewal under chapter
1417	458, chapter 459, chapter 460, or chapter 461, except a person
1418	registered pursuant to ss. 458.345 and 459.021, must, in
1419	conjunction with the renewal of such license and under
1420	procedures adopted by the Department of Health, and in addition
1421	to any other information that may be required from the
1422	applicant, furnish the following information to the Department
1423	of Health:
1424	(a)1. The name of each medical school that the applicant
1425	has attended, with the dates of attendance and the date of
1426	graduation, and a description of all graduate medical education
1427	completed by the applicant, excluding any coursework taken to
1428	satisfy medical licensure continuing education requirements.
1429	2. The name of each hospital at which the applicant has
1430	privileges.
1431	3. The address at which the applicant will primarily
1432	conduct his or her practice.
1433	4. Any certification that the applicant has received from
1434	a specialty board that is recognized by the board to which the
1435	applicant is applying.
1436	5. The year that the applicant began practicing medicine.
1437	6. Any appointment to the faculty of a medical school
1438	which the applicant currently holds and an indication as to
1439	whether the applicant has had the responsibility for graduate
1440	medical education within the most recent 10 years.
1441	7. A description of any criminal offense of which the
1442	applicant has been found guilty, regardless of whether
1443	adjudication of guilt was withheld, or to which the applicant
1444	has pled guilty or nolo contendere. A criminal offense committed
1445	in another jurisdiction which would have been a felony or
1446	misdemeanor if committed in this state must be reported. If the
1447	applicant indicates that a criminal offense is under appeal and
1448	submits a copy of the notice for appeal of that criminal
1449	offense, the department must state that the criminal offense is
1450	under appeal if the criminal offense is reported in the
1451	applicant's profile. If the applicant indicates to the
1452	department that a criminal offense is under appeal, the
1453	applicant must, upon disposition of the appeal, submit to the
1454	department a copy of the final written order of disposition.
1455	8. A description of any final disciplinary action taken
1456	within the previous 10 years against the applicant by the agency
1457	regulating the profession that the applicant is or has been
1458	licensed to practice, whether in this state or in any other
1459	jurisdiction, by a specialty board that is recognized by the
1460	American Board of Medical Specialties, the American Osteopathic
1461	Association, or a similar national organization, or by a
1462	licensed hospital, health maintenance organization, prepaid
1463	health clinic, ambulatory surgical center, or nursing home.
1464	Disciplinary action includes resignation from or nonrenewal of
1465	medical staff membership or the restriction of privileges at a
1466	licensed hospital, health maintenance organization, prepaid
1467	health clinic, ambulatory surgical center, or nursing home taken
1468	in lieu of or in settlement of a pending disciplinary case
1469	related to competence or character. If the applicant indicates
1470	that the disciplinary action is under appeal and submits a copy
1471	of the document initiating an appeal of the disciplinary action,
1472	the department must state that the disciplinary action is under
1473	appeal if the disciplinary action is reported in the applicant's
1474	profile.
1475	9. Relevant professional qualifications as defined by the
1476	applicable board.
1477	Section 24. Subsection (3) is added to section 456.049,
1478	Florida Statutes, to read:
1479	456.049 Health care practitioners; reports on professional
1480	liability claims and actions.--
1481	(3) The department shall forward the information collected
1482	under this section to the Office of Insurance Regulation.
1483	Section 25. Subsection (6) and paragraph (a) of subsection
1484	(7) of section 456.057, Florida Statutes, are amended to read:
1485	456.057 Ownership and control of patient records; report
1486	or copies of records to be furnished.--
1487	(6) Except in a medical negligence action or
1488	administrative proceeding when a health care practitioner or
1489	provider is or reasonably expects to be named as a defendant,
1490	information disclosed to a health care practitioner by a patient
1491	in the course of the care and treatment of such patient is
1492	confidential and may be disclosed only to other health care
1493	practitioners and providers involved in the care or treatment of
1494	the patient, or if permitted by written authorization from the
1495	patient,orcompelled by subpoena at a deposition, evidentiary
1496	hearing, or trial for which proper notice has been given, or
1497	related to a medical negligence suit filed under chapter 766 in
1498	which the patient has executed, as a condition of filing the
1499	suit, a medical release that allows a defendant health care
1500	practitioner who is considered to be a health care provider
1501	under chapter 766, or his or her legal representative, to
1502	conduct ex parte interviews with the claimant’s treating
1503	physicians, which interviews must be limited to areas that are
1504	potentially relevant to the claimant’s alleged injury or
1505	illness.
1506	(7)(a)1. The department may obtain patient records
1507	pursuant to a subpoena without written authorization from the
1508	patient if the department and the probable cause panel of the
1509	appropriate board, if any, find reasonable cause to believe that
1510	a health care practitioner has excessively or inappropriately
1511	prescribed any controlled substance specified in chapter 893 in
1512	violation of this chapter or any professional practice act or
1513	that a health care practitioner has practiced his or her
1514	profession below that level of care, skill, and treatment
1515	required as defined by this chapter or any professional practice
1516	act and also find that appropriate, reasonable attempts were
1517	made to obtain a patient release.
1518	2. The department may obtain patient records and insurance
1519	information pursuant to a subpoena without written authorization
1520	from the patient if the department and the probable cause panel
1521	of the appropriate board, if any, find reasonable cause to
1522	believe that a health care practitioner has provided inadequate
1523	medical care based on termination of insurance and also find
1524	that appropriate, reasonable attempts were made to obtain a
1525	patient release.
1526	3. The department may obtain patient records, billing
1527	records, insurance information, provider contracts, and all
1528	attachments thereto pursuant to a subpoena without written
1529	authorization from the patient if the department and probable
1530	cause panel of the appropriate board, if any, find reasonable
1531	cause to believe that a health care practitioner has submitted a
1532	claim, statement, or bill using a billing code that would result
1533	in payment greater in amount than would be paid using a billing
1534	code that accurately describes the services performed, requested
1535	payment for services that were not performed by that health care
1536	practitioner, used information derived from a written report of
1537	an automobile accident generated pursuant to chapter 316 to
1538	solicit or obtain patients personally or through an agent
1539	regardless of whether the information is derived directly from
1540	the report or a summary of that report or from another person,
1541	solicited patients fraudulently, received a kickback as defined
1542	in s. 456.054, violated the patient brokering provisions of s.
1543	817.505, or presented or caused to be presented a false or
1544	fraudulent insurance claim within the meaning of s.
1545	817.234(1)(a), and also find that, within the meaning of s.
1546	817.234(1)(a), patient authorization cannot be obtained because
1547	the patient cannot be located or is deceased, incapacitated, or
1548	suspected of being a participant in the fraud or scheme, and if
1549	the subpoena is issued for specific and relevant records.
1550	4. Notwithstanding subparagraphs 1.-3., when the
1551	department investigates a professional liability claim or
1552	undertakes action pursuant to s. 456.049 or s. 627.912, the
1553	department may obtain patient records pursuant to a subpoena
1554	without written authorization from the patient if the patient
1555	refuses to cooperate or attempts to obtain a patient release and
1556	failure to obtain the patient records would be detrimental to
1557	the investigation.
1558	Section 26. Subsection (4) is added to section 456.063,
1559	Florida Statutes, to read:
1560	456.063 Sexual misconduct; disqualification for license,
1561	certificate, or registration.--
1562	(4) Each board, or the department if there is no board,
1563	may adopt rules to implement the requirements for reporting
1564	allegations of sexual misconduct, including rules to determine
1565	the sufficiency of the allegations.
1566	Section 27. Subsection (4) of section 456.072, Florida
1567	Statutes, is amended, and subsection (7) is added to said
1568	section, to read:
1569	456.072 Grounds for discipline; penalties; enforcement.--
1570	(4) In anyaddition to any other discipline imposed
1571	throughfinal order, or citation, entered on or after July 1,
1572	2001, that imposes a penalty or other form of discipline
1573	pursuant to this section or discipline imposed through final
1574	order, or citation, entered on or after July 1, 2001,for a
1575	violation of any practice act, the board, or the department when
1576	there is no board, shall assess costs related to the
1577	investigation and prosecution of the case, including costs
1578	associated with an attorney's time. The amount of costs to be
1579	assessed shall be determined by the board, or the department
1580	when there is no board, following its consideration of an
1581	affidavit of itemized costs and any written objections thereto.
1582	In any case in whichwhere the board or the department imposesa
1583	fine or assessment of costs imposed by the board or department
1584	and the fine or assessmentis not paid within a reasonable time,
1585	such reasonable time to be prescribed in the rules of the board,
1586	or the department when there is no board, or in the order
1587	assessing such fines or costs, the department or the Department
1588	of Legal Affairs may contract for the collection of, or bring a
1589	civil action to recover, the fine or assessment.
1590	(7) In any formal administrative hearing conducted under
1591	s. 120.57(1), the department shall establish grounds for the
1592	discipline of a licensee by the greater weight of the evidence.
1593	Section 28. Subsection (5) of section 456.073, Florida
1594	Statutes, is amended to read:
1595	456.073 Disciplinary proceedings.--Disciplinary
1596	proceedings for each board shall be within the jurisdiction of
1597	the department.
1598	(5)(a)A formal hearing before an administrative law judge
1599	from the Division of Administrative Hearings shall be held
1600	pursuant to chapter 120 if there are any disputed issues of
1601	material fact raised within 45 days after service of the
1602	administrative complaint. The administrative law judge shall
1603	issue a recommended order pursuant to chapter 120. If any party
1604	raises an issue of disputed fact during an informal hearing, the
1605	hearing shall be terminated and a formal hearing pursuant to
1606	chapter 120 shall be held.
1607	(b) Notwithstanding s. 120.569(2), the department shall
1608	notify the Division of Administrative Hearings within 45 days
1609	after receipt of a petition or request for a hearing that the
1610	department has determined requires a formal hearing before an
1611	administrative law judge.
1612	Section 29. Subsections (1) and (2) of section 456.077,
1613	Florida Statutes, are amended to read:
1614	456.077 Authority to issue citations.--
1615	(1) Notwithstanding s. 456.073, the board, or the
1616	department if there is no board, shall adopt rules to permit the
1617	issuance of citations. The citation shall be issued to the
1618	subject and shall contain the subject's name and address, the
1619	subject's license number if applicable, a brief factual
1620	statement, the sections of the law allegedly violated, and the
1621	penalty imposed. The citation must clearly state that the
1622	subject may choose, in lieu of accepting the citation, to follow
1623	the procedure under s. 456.073. If the subject disputes the
1624	matter in the citation, the procedures set forth in s. 456.073
1625	must be followed. However, if the subject does not dispute the
1626	matter in the citation with the department within 30 days after
1627	the citation is served, the citation becomes a publicfinal
1628	order and does not constituteconstitutes discipline for a first
1629	offense, but does constitute discipline for a second or
1630	subsequent offense. The penalty shall be a fine or other
1631	conditions as established by rule.
1632	(2) The board, or the department if there is no board,
1633	shall adopt rules designating violations for which a citation
1634	may be issued. Such rules shall designate as citation violations
1635	those violations for which there is no substantial threat to the
1636	public health, safety, and welfare or no violation of standard
1637	of care involving injury to a patient. Violations for which a
1638	citation may be issued shall include violations of continuing
1639	education requirements; failure to timely pay required fees and
1640	fines; failure to comply with the requirements of ss. 381.026
1641	and 381.0261 regarding the dissemination of information
1642	regarding patient rights; failure to comply with advertising
1643	requirements; failure to timely update practitioner profile and
1644	credentialing files; failure to display signs, licenses, and
1645	permits; failure to have required reference books available; and
1646	all other violations that do not pose a direct and serious
1647	threat to the health and safety of the patient or involve a
1648	violation of standard of care that has resulted in injury to a
1649	patient.
1650	Section 30. Subsections (1) and (2) of section 456.078,
1651	Florida Statutes, are amended to read:
1652	456.078 Mediation.--
1653	(1) Notwithstanding the provisions of s. 456.073, the
1654	board, or the department when there is no board, shall adopt
1655	rules to designate which violations of the applicable
1656	professional practice act, including standard of care
1657	violations,are appropriate for mediation. The board, or the
1658	department when there is no board, shallmaydesignate as
1659	mediation offenses those complaints where harm caused by the
1660	licensee is economic in nature, except any act or omission
1661	involving intentional misconduct,orcan be remedied by the
1662	licensee, is not a standard of care violation involving any type
1663	of injury to a patient, or does not result in an adverse
1664	incident. For the purposes of this section, an "adverse
1665	incident" means an event that results in:
1666	(a) The death of a patient;
1667	(b) Brain or spinal damage to a patient;
1668	(c) The performance of a surgical procedure on the wrong
1669	patient;
1670	(d) The performance of a wrong-site surgical procedure;
1671	(e) The performance of a surgical procedure that is
1672	medically unnecessary or otherwise unrelated to the patient's
1673	diagnosis or medical condition;
1674	(f) The surgical repair of damage to a patient resulting
1675	from a planned surgical procedure, which damage is not a
1676	recognized specific risk as disclosed to the patient and
1677	documented through the informed-consent process;
1678	(g) The performance of a procedure to remove unplanned
1679	foreign objects remaining from a surgical procedure; or
1680	(h) The performance of any other surgical procedure that
1681	breached the standard of care.
1682	(2) After the department determines a complaint is legally
1683	sufficient and the alleged violations are defined as mediation
1684	offenses, the department or any agent of the department may
1685	conduct informal mediation to resolve the complaint. If the
1686	complainant and the subject of the complaint agree to a
1687	resolution of a complaint within 14 days after contact by the
1688	mediator, the mediator shall notify the department of the terms
1689	of the resolution. The department or board shall take no further
1690	action unless the complainant and the subject each fail to
1691	record with the department an acknowledgment of satisfaction of
1692	the terms of mediation within 60 days of the mediator's
1693	notification to the department. A successful mediation shall not
1694	constitute discipline.In the event the complainant and subject
1695	fail to reach settlement terms or to record the required
1696	acknowledgment, the department shall process the complaint
1697	according to the provisions of s. 456.073.
1698	Section 31. Subsection (9) is added to section 458.320,
1699	Florida Statutes, to read:
1700	458.320 Financial responsibility.--
1701	(9) Nothing in this section shall be construed as creating
1702	a civil cause of action against any hospital as a result of the
1703	failure of any physician with staff privileges to comply with
1704	the requirements of this section.
1705	Section 32. Subsection (9) of section 459.0085, Florida
1706	Statutes, is renumbered as subsection (10), and a new subsection
1707	(9) is added to said section to read:
1708	459.0085 Financial responsibility.--
1709	(9) Nothing in this section shall be construed as creating
1710	a civil cause of action against any hospital as a result of the
1711	failure of any physician with staff privileges to comply with
1712	the requirements of this section.
1713	Section 33. Paragraph (t) of subsection (1) and
1714	subsections (3) and (6) of section 458.331, Florida Statutes,
1715	are amended to read:
1716	458.331 Grounds for disciplinary action; action by the
1717	board and department.--
1718	(1) The following acts constitute grounds for denial of a
1719	license or disciplinary action, as specified in s. 456.072(2):
1720	(t) Gross or repeated malpractice or the failure to
1721	practice medicine with that level of care, skill, and treatment
1722	which is recognized by a reasonably prudent similar physician as
1723	being acceptable under similar conditions and circumstances.
1724	The board shall give great weight to the provisions of s.
1725	766.102 when enforcing this paragraph. As used in this
1726	paragraph, "repeated malpractice" includes, but is not limited
1727	to, three or more claims for medical malpractice within the
1728	previous 5-year period resulting in indemnities being paid in
1729	excess of $50,000$25,000each to the claimant in a judgment or
1730	settlement and which incidents involved negligent conduct by the
1731	physician. As used in this paragraph, "gross malpractice" or
1732	"the failure to practice medicine with that level of care,
1733	skill, and treatment which is recognized by a reasonably prudent
1734	similar physician as being acceptable under similar conditions
1735	and circumstances," shall not be construed so as to require more
1736	than one instance, event, or act. Nothing in this paragraph
1737	shall be construed to require that a physician be incompetent to
1738	practice medicine in order to be disciplined pursuant to this
1739	paragraph.
1740	(3) In any administrative action against a physician which
1741	does not involve revocation or suspension of license, the
1742	division shall have the burden, by the greater weight of the
1743	evidence, to establish the existence of grounds for disciplinary
1744	action. The division shall establish grounds for revocation or
1745	suspension of license by clear and convincing evidence.
1746	(6) Upon the department's receipt from an insurer or self-
1747	insurer of a report of a closed claim against a physician
1748	pursuant to s. 627.912 or from a health care practitioner of a
1749	report pursuant to s. 456.049, or upon the receipt from a
1750	claimant of a presuit notice against a physician pursuant to s.
1751	766.106, the department shall review each report and determine
1752	whether it potentially involved conduct by a licensee that is
1753	subject to disciplinary action, in which case the provisions of
1754	s. 456.073 shall apply. However, if it is reported that a
1755	physician has had three or more claims with indemnities
1756	exceeding $50,000$25,000each within the previous 5-year
1757	period, the department shall investigate the occurrences upon
1758	which the claims were based and determine if action by the
1759	department against the physician is warranted.
1760	Section 34. Paragraph (x) of subsection (1) and
1761	subsections (3) and (6) of section 459.015, Florida Statutes,
1762	are amended to read:
1763	459.015 Grounds for disciplinary action; action by the
1764	board and department.--
1765	(1) The following acts constitute grounds for denial of a
1766	license or disciplinary action, as specified in s. 456.072(2):
1767	(x) Gross or repeated malpractice or the failure to
1768	practice osteopathic medicine with that level of care, skill,
1769	and treatment which is recognized by a reasonably prudent
1770	similar osteopathic physician as being acceptable under similar
1771	conditions and circumstances. The board shall give great weight
1772	to the provisions of s. 766.102 when enforcing this paragraph.
1773	As used in this paragraph, "repeated malpractice" includes, but
1774	is not limited to, three or more claims for medical malpractice
1775	within the previous 5-year period resulting in indemnities being
1776	paid in excess of $50,000$25,000each to the claimant in a
1777	judgment or settlement and which incidents involved negligent
1778	conduct by the osteopathic physician. As used in this paragraph,
1779	"gross malpractice" or "the failure to practice osteopathic
1780	medicine with that level of care, skill, and treatment which is
1781	recognized by a reasonably prudent similar osteopathic physician
1782	as being acceptable under similar conditions and circumstances"
1783	shall not be construed so as to require more than one instance,
1784	event, or act. Nothing in this paragraph shall be construed to
1785	require that an osteopathic physician be incompetent to practice
1786	osteopathic medicine in order to be disciplined pursuant to this
1787	paragraph. A recommended order by an administrative law judge or
1788	a final order of the board finding a violation under this
1789	paragraph shall specify whether the licensee was found to have
1790	committed "gross malpractice," "repeated malpractice," or
1791	"failure to practice osteopathic medicine with that level of
1792	care, skill, and treatment which is recognized as being
1793	acceptable under similar conditions and circumstances," or any
1794	combination thereof, and any publication by the board shall so
1795	specify.
1796	(3) In any administrative action against a physician which
1797	does not involve revocation or suspension of license, the
1798	division shall have the burden, by the greater weight of the
1799	evidence, to establish the existence of grounds for disciplinary
1800	action. The division shall establish grounds for revocation or
1801	suspension of license by clear and convincing evidence.
1802	(6) Upon the department's receipt from an insurer or self-
1803	insurer of a report of a closed claim against an osteopathic
1804	physician pursuant to s. 627.912 or from a health care
1805	practitioner of a report pursuant to s. 456.049, or upon the
1806	receipt from a claimant of a presuit notice against an
1807	osteopathic physician pursuant to s. 766.106, the department
1808	shall review each report and determine whether it potentially
1809	involved conduct by a licensee that is subject to disciplinary
1810	action, in which case the provisions of s. 456.073 shall apply.
1811	However, if it is reported that an osteopathic physician has had
1812	three or more claims with indemnities exceeding $50,000$25,000
1813	each within the previous 5-year period, the department shall
1814	investigate the occurrences upon which the claims were based and
1815	determine if action by the department against the osteopathic
1816	physician is warranted.
1817	Section 35. Subsection (6) of section 460.413, Florida
1818	Statutes, is amended to read:
1819	460.413 Grounds for disciplinary action; action by board
1820	or department.--
1821	(6) In any administrative action against a chiropractic
1822	physician which does not involve revocation or suspension of
1823	license, the department shall have the burden, by the greater
1824	weight of the evidence, to establish the existence of grounds
1825	for disciplinary action. The department shall establish grounds
1826	for revocation or suspension of license by clear and convincing
1827	evidence.
1828	Section 36. Paragraph (s) of subsection (1) and paragraph
1829	(a) of subsection (5) of section 461.013, Florida Statutes, are
1830	amended to read:
1831	461.013 Grounds for disciplinary action; action by the
1832	board; investigations by department.--
1833	(1) The following acts constitute grounds for denial of a
1834	license or disciplinary action, as specified in s. 456.072(2):
1835	(s) Gross or repeated malpractice or the failure to
1836	practice podiatric medicine at a level of care, skill, and
1837	treatment which is recognized by a reasonably prudent podiatric
1838	physician as being acceptable under similar conditions and
1839	circumstances. The board shall give great weight to the
1840	standards for malpractice in s. 766.102 in interpreting this
1841	section. As used in this paragraph, "repeated malpractice"
1842	includes, but is not limited to, three or more claims for
1843	medical malpractice within the previous 5-year period resulting
1844	in indemnities being paid in excess of $50,000$10,000each to
1845	the claimant in a judgment or settlement and which incidents
1846	involved negligent conduct by the podiatric physicians. As used
1847	in this paragraph, "gross malpractice" or "the failure to
1848	practice podiatric medicine with the level of care, skill, and
1849	treatment which is recognized by a reasonably prudent similar
1850	podiatric physician as being acceptable under similar conditions
1851	and circumstances" shall not be construed so as to require more
1852	than one instance, event, or act.
1853	(5)(a) Upon the department's receipt from an insurer or
1854	self-insurer of a report of a closed claim against a podiatric
1855	physician pursuant to s. 627.912, or upon the receipt from a
1856	claimant of a presuit notice against a podiatric physician
1857	pursuant to s. 766.106, the department shall review each report
1858	and determine whether it potentially involved conduct by a
1859	licensee that is subject to disciplinary action, in which case
1860	the provisions of s. 456.073 shall apply. However, if it is
1861	reported that a podiatric physician has had three or more claims
1862	with indemnities exceeding $50,000$25,000each within the
1863	previous 5-year period, the department shall investigate the
1864	occurrences upon which the claims were based and determine if
1865	action by the department against the podiatric physician is
1866	warranted.
1867	Section 37. Paragraph (x) of subsection (1) of section
1868	466.028, Florida Statutes, is amended to read:
1869	466.028 Grounds for disciplinary action; action by the
1870	board.--
1871	(1) The following acts constitute grounds for denial of a
1872	license or disciplinary action, as specified in s. 456.072(2):
1873	(x) Being guilty of incompetence or negligence by failing
1874	to meet the minimum standards of performance in diagnosis and
1875	treatment when measured against generally prevailing peer
1876	performance, including, but not limited to, the undertaking of
1877	diagnosis and treatment for which the dentist is not qualified
1878	by training or experience or being guilty of dental malpractice.
1879	For purposes of this paragraph, it shall be legally presumed
1880	that a dentist is not guilty of incompetence or negligence by
1881	declining to treat an individual if, in the dentist's
1882	professional judgment, the dentist or a member of her or his
1883	clinical staff is not qualified by training and experience, or
1884	the dentist's treatment facility is not clinically satisfactory
1885	or properly equipped to treat the unique characteristics and
1886	health status of the dental patient, provided the dentist refers
1887	the patient to a qualified dentist or facility for appropriate
1888	treatment. As used in this paragraph, "dental malpractice"
1889	includes, but is not limited to, three or more claims within the
1890	previous 5-year period which resulted in indemnity being paid,
1891	or any single indemnity paid in excess of $25,000$5,000in a
1892	judgment or settlement, as a result of negligent conduct on the
1893	part of the dentist.
1894	Section 38. Section 624.155, Florida Statutes, is amended
1895	to read:
1896	624.155 Civil remedy.--
1897	(1) Any person may bring a civil action against an insurer
1898	when such person is damaged:
1899	(a) By a violation of any of the following provisions by
1900	the insurer:
1901	1. Section 626.9541(1)(i), (o), or (x);
1902	2. Section 626.9551;
1903	3. Section 626.9705;
1904	4. Section 626.9706;
1905	5. Section 626.9707; or
1906	6. Section 627.7283.
1907	(b) By the commission of any of the following acts by the
1908	insurer:
1909	1. Not attempting in good faith to settle claims when,
1910	under all the circumstances, it could and should have done so,
1911	had it acted fairly and honestly toward its insured and with due
1912	regard for her or his interests;
1913	2. Making claims payments to insureds or beneficiaries not
1914	accompanied by a statement setting forth the coverage under
1915	which payments are being made; or
1916	3. Except as to liability coverages, failing to promptly
1917	settle claims, when the obligation to settle a claim has become
1918	reasonably clear, under one portion of the insurance policy
1919	coverage in order to influence settlements under other portions
1920	of the insurance policy coverage.
1921
1922	Notwithstanding the provisions of the above to the contrary, a
1923	person pursuing a remedy under this section need not prove that
1924	such act was committed or performed with such frequency as to
1925	indicate a general business practice.
1926	(2) In matters relating to professional liability
1927	insurance coverage for medical negligence, only the insured may
1928	bring a civil action against an insurer when such person is
1929	damaged:
1930	(a) By a violation of any of the following provisions by
1931	the insurer:
1932	1. Section 626.9541(1)(i), (o), or (x);
1933	2. Section 626.9551;
1934	3. Section 626.9705;
1935	4. Section 626.9706;
1936	5. Section 626.9707; or
1937	6. Section 627.7283.
1938	(b) By the commission of any of the following acts by the
1939	insurer:
1940	1. Not attempting in good faith to settle claims when,
1941	under all the circumstances, it could and should have done so,
1942	had it acted fairly and honestly toward its insured and with due
1943	regard for her or his interests, provided that in any action,
1944	whether under statute or common law, against a liability insurer
1945	for alleged failure to settle a claim against its insured:
1946	a. The duty of good faith and fairly and honestly dealing
1947	with its insured requires the insurer to provide a defense for
1948	its insured to give the insured’s interests consideration at
1949	least equal to its interests and the interests of all its
1950	policyholders in deciding whether to litigate or settle a claim.
1951	b. An insurer need not submit to demands for settlement
1952	within the policy limit simply because there is a possibility of
1953	an excess verdict. The insurer must have had a reasonable
1954	opportunity to settle the claim within the policy limits during
1955	the life of the claim.
1956	c. An insurer shall not be held in bad faith if it tenders
1957	its policy limits at least 120 days prior to trial in the
1958	underlying case giving rise to a bad faith claim.
1959	d. Factors to be considered in determining whether the
1960	insurer dealt with its insured in good faith include:
1961	(I) The insurer’s willingness to negotiate with the
1962	claimant.
1963	(II) The insurer’s proper investigation of the claim.
1964	(III) The insurer’s consideration of the advice of its
1965	defense counsel.
1966	(IV) Whether the insurer informed the insured of the offer
1967	to settle within the limits of coverage, the right to retain
1968	personal counsel, and the risks of litigation.
1969	(V) Whether the insured denied liability or requested that
1970	the case be defended.
1971	(VI) Whether the claimant imposed any condition, other
1972	than tender of policy limits, as to settlement of the claim.
1973	e. In the event that an insurer is found to have breached
1974	its duty to settle on behalf of an insured, the insurer is
1975	responsible to pay on behalf of the insured as to such judgment
1976	only the applicable policy limits and amount of the excess
1977	judgment that the insured can demonstrate could have been
1978	satisfied from the attachment or forced sale of property of the
1979	insured, absent insurance coverage. The court shall enter
1980	judgment against the insurer after conducting an inquiry to
1981	ascertain the future value of the underlying excess judgment.
1982	The inquiry shall include the use of expert testimony on the
1983	issues of future income of the insured, accumulation of
1984	attachable assets by the insured, and the probability of
1985	collecting the underlying excess judgment from the insured
1986	absent liability insurance coverage. The insured shall be deemed
1987	not to have waived any exemption from forced sale or attachment
1988	available to the insured or insured’s spouse under state law,
1989	federal law, or law applicable in the jurisdiction where the
1990	property is located. This limitation shall not be construed to
1991	limit rights or obligations of the insured or insurer other than
1992	as specified herein.
1993	f. As to any judgment entered against an insured covered
1994	by a liability insurance policy, the judgment debtor is hereby
1995	granted an exemption under chapter 55, and from any liens or
1996	execution of such judgment, in an amount equal to all sums that
1997	have been paid on his or her behalf by a liability insurer. All
1998	such sums shall be recorded by the judgment creditor in a manner
1999	that reflects an equivalent partial or total satisfaction of the
2000	judgment.
2001	g. Any judgment entered against a liability insurer and
2002	any portion of a settlement designated as damage for breach of
2003	this subparagraph shall be reported by the insurer to the Office
2004	of Insurance Regulation and the office shall conduct such
2005	investigation and impose such penalties as it determines to be
2006	appropriate for any violation of the insurance code.
2007	2. Making claims payments to insureds or beneficiaries not
2008	accompanied by a statement setting forth the coverage under
2009	which payments are being made.
2010
2011	An insured pursuing a remedy under this subsection need not
2012	prove that such act was committed or performed with such
2013	frequency as to indicate a general business practice. Nothing in
2014	this subsection shall be construed to prohibit an insured from
2015	assigning the cause of action to an injured third party claimant
2016	for the insurer’s failure to act fairly and honestly towards its
2017	insured and with due regard for the insured’s interest.
2018	(3)(2)(a) As a condition precedent to bringing an action
2019	under this section, the department and the insurer must have
2020	been given 60 days' written notice of the violation. If the
2021	department returns a notice for lack of specificity, the 60-day
2022	time period shall not begin until a proper notice is filed.
2023	(b) The notice shall be on a form provided by the
2024	department and shall state with specificity the following
2025	information, and such other information as the department may
2026	require:
2027	1. The statutory provision, including the specific
2028	language of the statute, which the insurer allegedly violated.
2029	2. The facts and circumstances giving rise to the
2030	violation.
2031	3. The name of any individual involved in the violation.
2032	4. Reference to specific policy language that is relevant
2033	to the violation, if any. If the person bringing the civil
2034	action is a third party claimant, she or he shall not be
2035	required to reference the specific policy language if the
2036	insurer has not provided a copy of the policy to the third party
2037	claimant pursuant to written request.
2038	5. A statement that the notice is given in order to
2039	perfect the right to pursue the civil remedy authorized by this
2040	section.
2041	(c) Within 20 days of receipt of the notice, the
2042	department may return any notice that does not provide the
2043	specific information required by this section, and the
2044	department shall indicate the specific deficiencies contained in
2045	the notice. A determination by the department to return a notice
2046	for lack of specificity shall be exempt from the requirements of
2047	chapter 120.
2048	(d) No action shall lie if, within 60 days after filing
2049	notice, the damages are paid or the circumstances giving rise to
2050	the violation are corrected.
2051	(e) The insurer that is the recipient of a notice filed
2052	pursuant to this section shall report to the department on the
2053	disposition of the alleged violation.
2054	(f) The applicable statute of limitations for an action
2055	under this section shall be tolled for a period of 65 days by
2056	the mailing of the notice required by this subsection or the
2057	mailing of a subsequent notice required by this subsection.
2058	(4)(3)Upon adverse adjudication at trial or upon appeal,
2059	the insurer shall be liable for damages, together with court
2060	costs and reasonable attorney's fees incurred by the plaintiff;
2061	however, in any action under this section relating to
2062	professional liability insurance coverage for medical
2063	negligence, no award for attorney’s fees shall be enhanced by a
2064	contingency risk multiplier.
2065	(5)(4)No punitive damages shall be awarded under this
2066	section unless the acts giving rise to the violation occur with
2067	such frequency as to indicate a general business practice and
2068	these acts are:
2069	(a) Willful, wanton, and malicious;
2070	(b) In reckless disregard for the rights of any insured;
2071	or
2072	(c) In reckless disregard for the rights of a beneficiary
2073	under a life insurance contract.
2074
2075	Any person who pursues a claim under this subsection shall post
2076	in advance the costs of discovery. Such costs shall be awarded
2077	to the insurer if no punitive damages are awarded to the
2078	plaintiff.
2079	(6)(5)This section shall not be construed to authorize a
2080	class action suit against an insurer or a civil action against
2081	the department, its employees, or the Insurance Commissioner, or
2082	to create a cause of action when a health insurer refuses to pay
2083	a claim for reimbursement on the ground that the charge for a
2084	service was unreasonably high or that the service provided was
2085	not medically necessary.
2086	(7)(6)In the absence of expressed language to the
2087	contrary, this section shall not be construed to authorize a
2088	civil action or create a cause of action against an insurer or
2089	its employees who, in good faith, release information about an
2090	insured or an insurance policy to a law enforcement agency in
2091	furtherance of an investigation of a criminal or fraudulent act
2092	relating to a motor vehicle theft or a motor vehicle insurance
2093	claim.
2094	(8)(7)The civil remedy specified in this section does not
2095	preempt any other remedy or cause of action provided for
2096	pursuant to any other statute or pursuant to the common law of
2097	this state. Any person may obtain a judgment under either the
2098	common-law remedy of bad faith or this statutory remedy, but
2099	shall not be entitled to a judgment under both remedies. This
2100	section shall not be construed to create a common-law cause of
2101	action. The damages recoverable pursuant to this section shall
2102	include those damages which are a reasonably foreseeable result
2103	of a specified violation of this section by the insurer and may
2104	include an award or judgment in an amount that exceeds the
2105	policy limits.
2106	Section 39. If any provision of the changes to s. 624.155,
2107	Florida Statutes, contained in this act or the application
2108	thereof to any person or circumstance is held invalid, the
2109	invalidity shall not affect other provisions or applications
2110	relating to the changes to s. 624.155, Florida Statutes,
2111	contained in this act, provided said provisions can be given
2112	effect without the invalid provision or application, and to this
2113	end, the provisions of this act and changes to s. 624.155,
2114	Florida Statutes, contained in this act are declared severable.
2115	Section 40. The amendments to s. 624.155, Florida
2116	Statutes, contained in this act shall apply to all actions where
2117	the presuit period contained in chapter 766 is not complete or
2118	where claimant has not demanded the limits of the insurance
2119	coverage, whichever is later.
2120	Section 41. Subsections (7), (8), and (9) are added to
2121	section 627.062, Florida Statutes, to read:
2122	627.062 Rate standards.--
2123	(7) Notwithstanding any other provision of this section,
2124	in matters relating to professional liability insurance coverage
2125	for medical negligence, any portion of a judgment entered as a
2126	result of a statutory or common-law bad faith action and any
2127	portion of a judgment entered that awards punitive damages
2128	against an insurer may not be included in the insurer's rate
2129	base and may not be used to justify a rate or rate change. In
2130	matters relating to professional liability insurance coverage
2131	for medical negligence, any portion of a settlement entered as a
2132	result of a statutory or common-law bad faith action identified
2133	as such and any portion of a settlement wherein an insurer
2134	agrees to pay specific punitive damages may not be used to
2135	justify a rate or rate change. The portion of the taxable costs
2136	and attorney's fees that is identified as being related to the
2137	bad faith and punitive damages in these judgments and
2138	settlements may not be included in the insurer's rate base and
2139	may not be utilized to justify a rate or rate change.
2140	(8) Each insurer writing professional liability insurance
2141	coverage for medical negligence must make a rate filing under
2142	this section with the Office of Insurance Regulation at least
2143	once each calendar year.
2144	(9) Medical malpractice insurance companies shall submit a
2145	rate filing to the Office of Insurance Regulation no earlier
2146	than 30 days, but no later than 120 days, after the date upon
2147	which this act becomes law.
2148	Section 42. Subsection (10) of section 627.357, Florida
2149	Statutes, is amended to read:
2150	627.357 Medical malpractice self-insurance.--
2151	(10)(a) An application to form a self-insurance fund under
2152	this section must be filed with the Office of Insurance
2153	Regulation.
2154	(b) The Office of Insurance Regulation must ensure that
2155	self-insurance funds remain solvent and provide insurance
2156	coverage purchased by participants. The Financial Services
2157	Commission may adopt rules pursuant to ss. 120.536(1) and 120.54
2158	to implement this subsectionA self-insurance fund may not be
2159	formed under this section after October 1, 1992.
2160	Section 43. Subsection (1) of section 627.4147, Florida
2161	Statutes, is amended to read:
2162	627.4147 Medical malpractice insurance contracts.--
2163	(1) In addition to any other requirements imposed by law,
2164	each self-insurance policy as authorized under s. 627.357 or
2165	insurance policy providing coverage for claims arising out of
2166	the rendering of, or the failure to render, medical care or
2167	services, including those of the Florida Medical Malpractice
2168	Joint Underwriting Association, shall include:
2169	(a) A clause requiring the insured to cooperate fully in
2170	the review process prescribed under s. 766.106 if a notice of
2171	intent to file a claim for medical malpractice is made against
2172	the insured.
2173	(b)1. Except as provided in subparagraph 2., a clause
2174	authorizing the insurer or self-insurer to determine, to make,
2175	and to conclude, without the permission of the insured, any
2176	offer of admission of liability and for arbitration pursuant to
2177	s. 766.106, settlement offer, or offer of judgment, if the offer
2178	is within the policy limits. It is against public policy for any
2179	insurance or self-insurance policy to contain a clause giving
2180	the insured the exclusive right to veto any offer for admission
2181	of liability and for arbitration made pursuant to s. 766.106,
2182	settlement offer, or offer of judgment, when such offer is
2183	within the policy limits. However, any offer of admission of
2184	liability, settlement offer, or offer of judgment made by an
2185	insurer or self-insurer shall be made in good faith and in the
2186	best interests of the insured.
2187	2.a. With respect to dentists licensed under chapter 466,
2188	a clause clearly stating whether or not the insured has the
2189	exclusive right to veto any offer of admission of liability and
2190	for arbitration pursuant to s. 766.106, settlement offer, or
2191	offer of judgment if the offer is within policy limits. An
2192	insurer or self-insurer shall not make or conclude, without the
2193	permission of the insured, any offer of admission of liability
2194	and for arbitration pursuant to s. 766.106, settlement offer, or
2195	offer of judgment, if such offer is outside the policy limits.
2196	However, any offer for admission of liability and for
2197	arbitration made under s. 766.106, settlement offer, or offer of
2198	judgment made by an insurer or self-insurer shall be made in
2199	good faith and in the best interest of the insured.
2200	b. If the policy contains a clause stating the insured
2201	does not have the exclusive right to veto any offer or admission
2202	of liability and for arbitration made pursuant to s. 766.106,
2203	settlement offer or offer of judgment, the insurer or self-
2204	insurer shall provide to the insured or the insured's legal
2205	representative by certified mail, return receipt requested, a
2206	copy of the final offer of admission of liability and for
2207	arbitration made pursuant to s. 766.106, settlement offer or
2208	offer of judgment and at the same time such offer is provided to
2209	the claimant. A copy of any final agreement reached between the
2210	insurer and claimant shall also be provided to the insurer or
2211	his or her legal representative by certified mail, return
2212	receipt requested not more than 10 days after affecting such
2213	agreement.
2214	(b)(c)A clause requiring the insurer or self-insurer to
2215	notify the insured no less than 60 days prior to the effective
2216	date of cancellation of the policy or contract and, in the event
2217	of a determination by the insurer or self-insurer not to renew
2218	the policy or contract, to notify the insured no less than 60
2219	days prior to the end of the policy or contract period. If
2220	cancellation or nonrenewal is due to nonpayment or loss of
2221	license, 10 days' notice is required.
2222	Section 44. Subsections (1) and (4) and paragraph (n) of
2223	subsection (2) of section 627.912, Florida Statutes, are amended
2224	to read:
2225	627.912 Professional liability claims and actions; reports
2226	by insurers.--
2227	(1)(a)Each self-insurer authorized under s. 627.357 and
2228	each insurer or joint underwriting association providing
2229	professional liability insurance to a practitioner of medicine
2230	licensed under chapter 458, to a practitioner of osteopathic
2231	medicine licensed under chapter 459, to a podiatric physician
2232	licensed under chapter 461, to a dentist licensed under chapter
2233	466, to a hospital licensed under chapter 395, to a crisis
2234	stabilization unit licensed under part IV of chapter 394, to a
2235	health maintenance organization certificated under part I of
2236	chapter 641, to clinics included in chapter 390, to an
2237	ambulatory surgical center as defined in s. 395.002, or to a
2238	member of The Florida Bar shall report in duplicate to the
2239	Department of Insurance any claim or action for damages for
2240	personal injuries claimed to have been caused by error,
2241	omission, or negligence in the performance of such insured's
2242	professional services or based on a claimed performance of
2243	professional services without consent, if the claim resulted in:
2244	1.(a)A final judgment in any amount.
2245	2.(b)A settlement in any amount.
2246
2247	Reports shall be filed with the department.
2248	(b) In addition to the requirements of paragraph (a), if
2249	the insured party is licensed under chapter 395, chapter 458,
2250	chapter 459, chapter 461, or chapter 466, the insurer shall
2251	report in duplicate to the Office of Insurance Regulation any
2252	other disposition of the claim, including, but not limited to, a
2253	dismissal. If the insured is licensed under chapter 458, chapter
2254	459, or chapter 461, any claim that resulted in a final judgment
2255	or settlement in the amount of $50,000 or more shall be reported
2256	to the Department of Health no later than 30 days following the
2257	occurrence of that event. If the insured is licensed under
2258	chapter 466, any claim that resulted in a final judgment or
2259	settlement in the amount of $25,000 or more shall be reported to
2260	the Department of Health no later than 30 days following the
2261	occurrence of that eventand, if the insured party is licensed
2262	under chapter 458, chapter 459, chapter 461, or chapter 466,
2263	with the Department of Health, no later than 30 days following
2264	the occurrence of any event listed in paragraph (a) or paragraph
2265	(b). The Department of Health shall review each report and
2266	determine whether any of the incidents that resulted in the
2267	claim potentially involved conduct by the licensee that is
2268	subject to disciplinary action, in which case the provisions of
2269	s. 456.073 shall apply. The Department of Health, as part of the
2270	annual report required by s. 456.026, shall publish annual
2271	statistics, without identifying licensees, on the reports it
2272	receives, including final action taken on such reports by the
2273	Department of Health or the appropriate regulatory board.
2274	(2) The reports required by subsection (1) shall contain:
2275	(n) Any other information required by the department to
2276	analyze and evaluate the nature, causes, location, cost, and
2277	damages involved in professional liability cases. The Financial
2278	Services Commission shall adopt by rule requirements for
2279	additional information to assist the Office of Insurance
2280	Regulation in its analysis and evaluation of the nature, causes,
2281	location, cost, and damages involved in professional liability
2282	cases reported by insurers under this section.
2283	(4) There shall be no liability on the part of, and no
2284	cause of action of any nature shall arise against, any insurer
2285	reporting hereunder or its agents or employees or the department
2286	or its employees for any action taken by them under this
2287	section. The department shallmayimpose a fine of $250 per day
2288	per case, but not to exceed a total of $10,000$1,000per case,
2289	against an insurer that violates the requirements of this
2290	section. This subsection applies to claims accruing on or after
2291	October 1, 1997.
2292	Section 45. Section 627.41493, Florida Statutes, is
2293	created to read:
2294	627.41493 Insurance rates.--
2295	(1) On or before July 1, 2003, an insurer providing
2296	professional liability insurance coverage for medical negligence
2297	shall make a rate filing effective no later than October 1,
2298	2003, reducing rates for professional liability coverage for
2299	medical negligence to the rate in effect on April 1, 2003,
2300	reduced by an aggregate factor of 20 percent to reflect the
2301	impact this act will have on reducing the cost of claims.
2302	Nothing in this subsection shall require an insurer to provide
2303	the 20 percent reduction in rates equally among all policies and
2304	risk classifications. Insurers must demonstrate to the Office of
2305	Insurance Regulation using generally accepted actuarial
2306	techniques that any rate reductions by policy limits and risk
2307	classifications are in accordance with s. 627.062 and will
2308	result in an aggregate rate reduction of 20 percent.
2309	Alternatively, for professional liability insurance coverage for
2310	medical negligence with policy limits of $250,000 per claim and
2311	annual aggregate limits of $750,000, an insurer shall make a
2312	rate filing effective no later than October 1, 2003, reducing
2313	rates to the rate in effect on April 1, 2003 reduced by a factor
2314	of 20 percent and an comparable factor for other limits of
2315	coverage to reflect the impact of the provisions of this act.
2316	(2) Any insurer or rating organization which contends that
2317	the rate provided for in subsection (1) is excessive,
2318	inadequate, unfairly discriminatory, or too low to allow a
2319	reasonable rate of return shall separately state in its filing
2320	the rate it contends is appropriate and shall state with
2321	specificity the factors or data which it contends should be
2322	considered in order to produce such appropriate rate. The
2323	insurer or rating organization shall be permitted to use all of
2324	the generally accepted actuarial techniques as provided in s.
2325	627.062 in making any filing pursuant to this subsection. The
2326	Office of Insurance Regulation shall review each filing and
2327	approve or disapprove it pursuant to the provisions of s.
2328	627.062. Such filings shall be deemed approved on November 1,
2329	2003, unless by such date the department has issued a notice of
2330	intent to disapprove the filing. Each insurer or rating
2331	organization shall include in the filing the expected impact on
2332	losses, expenses, and rates of the provision contained in this
2333	act. If any measure contained in this act is held
2334	unconstitutional by a court of competent jurisdiction, the
2335	office shall permit an adjustment of rates under this section to
2336	reflect the impact of such holding on such rates, so as to
2337	ensure that the rates are not excessive, inadequate, unfairly
2338	discriminatory, or too low to allow a reasonable rate of return.
2339	The expected rate impact of any specific measure contained in
2340	the act shall be held in abeyance during the review of such
2341	measure’s constitutionality in any proceeding by a court of
2342	competent jurisdiction.
2343	Section 46. Section 627.9121, Florida Statutes, is created
2344	to read:
2345	627.9121 Required reporting of claims; penalties.--Each
2346	entity that makes payment under a policy of insurance, self-
2347	insurance, or otherwise in settlement, partial settlement, or
2348	satisfaction of a judgment in a medical malpractice action or
2349	claim that is required to report information to the National
2350	Practitioner Data Bank under 42 U.S.C. s. 11131 must also report
2351	the same information to the Office of Insurance Regulation. The
2352	office shall include such information in the data that it
2353	compiles under s. 627.912. The office must compile and review
2354	the data collected pursuant to this section and must assess an
2355	administrative fine on any entity that fails to fully comply
2356	with such reporting requirements.
2357	Section 47. Subsections (12), (13), and (18) of section
2358	641.19, Florida Statutes, are amended to read:
2359	641.19 Definitions.--As used in this part, the term:
2360	(12) "Health maintenance contract" means any contract
2361	entered into by a health maintenance organization with a
2362	subscriber or group of subscribers to provide coverage for
2363	comprehensive health care services in exchange for a prepaid per
2364	capita or prepaid aggregate fixed sum.
2365	(13) "Health maintenance organization" means any
2366	organization authorized under this part which:
2367	(a) Provides, through arrangements with other persons,
2368	emergency care, inpatient hospital services, physician care
2369	including care provided by physicians licensed under chapters
2370	458, 459, 460, and 461, ambulatory diagnostic treatment, and
2371	preventive health care services.;
2372	(b) Provides, either directly orthrough arrangements with
2373	other persons, health care services to persons enrolled with
2374	such organization, on a prepaid per capita or prepaid aggregate
2375	fixed-sum basis.;
2376	(c) Provides, either directly orthrough arrangements with
2377	other persons, comprehensive health care services which
2378	subscribers are entitled to receive pursuant to a contract.;
2379	(d) Provides physician services, by physicians licensed
2380	under chapters 458, 459, 460, and 461, directly through
2381	physicians who are either employees or partners of such
2382	organization or under arrangements with a physician or any group
2383	of physicians.; and
2384	(e) If offering services through a managed care system,
2385	then the managed care system must be a system in which a primary
2386	physician licensed under chapter 458 or chapter 459 and chapters
2387	460 and 461 is designated for each subscriber upon request of a
2388	subscriber requesting service by a physician licensed under any
2389	of those chapters, and is responsible for coordinating the
2390	health care of the subscriber of the respectively requested
2391	service and for referring the subscriber to other providers of
2392	the same discipline when necessary. Each female subscriber may
2393	select as her primary physician an obstetrician/gynecologist who
2394	has agreed to serve as a primary physician and is in the health
2395	maintenance organization's provider network.
2396	(f) The fact that a health maintenance organization
2397	arranges for the provision of health care services under this
2398	chapter does not create an actual agency, apparent agency, or
2399	employer-employee relationship between a health care provider
2400	and a health maintenance organization for purposes of vicarious
2401	liability for the medical negligence of a health care provider.
2402	(18) "Subscriber" means an entity or individual who has
2403	contracted, or on whose behalf a contract has been entered into,
2404	with a health maintenance organization for health care coverage
2405	services or other persons who also receive health care coverage
2406	servicesas a result of the contract.
2407	Section 48. Subsection (3) of section 641.51, Florida
2408	Statutes, is amended to read:
2409	641.51 Quality assurance program; second medical opinion
2410	requirement.--
2411	(3) The health maintenance organization shall not have the
2412	right to control theprofessional judgment of a physician
2413	licensed under chapter 458, chapter 459, chapter 460, or chapter
2414	461 concerning the proper course of treatment of a subscriber
2415	shall not be subject to modification by the organization or its
2416	board of directors, officers, or administrators, unless the
2417	course of treatment prescribed is inconsistent with the
2418	prevailing standards of medical practice in the community.
2419	However, this subsection shall not be considered to restrict a
2420	utilization management program established by an organization,
2421	or to affect an organization’s decision as to payment for
2422	covered services. A health maintenance organization shall not be
2423	vicariously liable for the medical negligence of a health care
2424	provider, whether such claim is alleged under a theory of
2425	employer-employee, actual agency, or apparent agency.
2426	Section 49. Subsection (2) of section 766.102, Florida
2427	Statutes, is amended to read:
2428	766.102 Medical negligence; standards of recovery.--
2429	(2)(a) If the health care provider whose negligence is
2430	claimed to have created the cause of action is not certified by
2431	the appropriate American board as being a specialist, is not
2432	trained and experienced in a medical specialty, or does not hold
2433	himself or herself out as a specialist, a "similar health care
2434	provider" is one who:
2435	1. Is licensed by the appropriate regulatory agency of
2436	this state.;
2437	2. Is trained and experienced in the same discipline or
2438	school of practice.; and
2439	3. Practices in the same or similar medical community.
2440	4. Has, during the 5 years immediately preceding the date
2441	of the occurrence that is the basis for the action, engaged in
2442	any combination of the following:
2443	a. Active clinical practice;
2444	b. Instruction of students in an accredited health
2445	professional school or accredited residency program in the same
2446	health profession as the health care provider against whom or on
2447	whose behalf the testimony is offered; or
2448	c. A clinical research program that is affiliated with an
2449	accredited medical school or teaching hospital in the same
2450	health profession as the health care provider against whom or on
2451	whose behalf the testimony is offered.
2452	(b) If the health care provider whose negligence is
2453	claimed to have created the cause of action is certified by the
2454	appropriate American board as a specialist, is trained and
2455	experienced in a medical specialty, or holds himself or herself
2456	out as a specialist, a "similar health care provider" is one
2457	who:
2458	1. Is trained and experienced in the same specialty.; and
2459	2. Is certified by the appropriate American board in the
2460	same specialty.
2461	3. Has, during the 5 years immediately preceding the date
2462	of the occurrence that is the basis for the action, engaged in
2463	any combination of the following:
2464	a. Active clinical practice in the same specialty or a
2465	similar specialty that includes the evaluation, diagnosis, or
2466	treatment of the medical condition or procedure that is the
2467	subject of the action;
2468	b. Instruction of students in an accredited health
2469	professional school or accredited residency program in the same
2470	health profession and the same or similar specialty as the
2471	health care provider against whom or on whose behalf the
2472	testimony is offered; or
2473	c. A clinical research program that is affiliated with an
2474	accredited medical school or teaching hospital and that is in
2475	the same health profession and the same or similar specialty as
2476	the health care provider against whom or on whose behalf the
2477	testimony is offered and that is in the general practice of
2478	medicine.
2479
2480	However, if any health care provider described in this paragraph
2481	is providing treatment or diagnosis for a condition which is not
2482	within his or her specialty, a specialist trained in the
2483	treatment or diagnosis for that condition shall be considered a
2484	"similar health care provider."
2485	(c) The purpose of this subsection is to establish a
2486	relative standard of care for various categories and
2487	classifications of health care providers. Any health care
2488	provider may testify as an expert in any action if he or she:
2489	1. Is a similar health care provider pursuant to paragraph
2490	(a) or paragraph (b); or
2491	2. Is not a similar health care provider pursuant to
2492	paragraph (a) or paragraph (b) but, to the satisfaction of the
2493	court, possesses sufficient training, experience, and knowledge
2494	as a result of practice or teaching in the specialty of the
2495	defendant or practice or teaching in a related field of
2496	medicine, so as to be able to provide such expert testimony as
2497	to the prevailing professional standard of care in a given field
2498	of medicine. Such training, experience, or knowledge must be as
2499	a result of the active involvement in the practice or teaching
2500	of medicine within the 5-year period before the incident giving
2501	rise to the claim.
2502	Section 50. Subsection (1) of section 766.104, Florida
2503	Statutes, is amended to read:
2504	766.104 Pleading in medical negligence cases; claim for
2505	punitive damages; authorization for release of records for
2506	investigation.--
2507	(1) No action shall be filed for personal injury or
2508	wrongful death arising out of medical negligence, whether in
2509	tort or in contract, unless the attorney filing the action has
2510	made a reasonable investigation as permitted by the
2511	circumstances to determine that there are grounds for a good
2512	faith belief that there has been negligence in the care or
2513	treatment of the claimant. The complaint or initial pleading
2514	shall contain a certificate of counsel that such reasonable
2515	investigation gave rise to a good faith belief that grounds
2516	exist for an action against each named defendant. For purposes
2517	of this section, good faith may be shown to exist if the
2518	claimant or his or her counsel has received a written opinion,
2519	which shall notbe subject to discovery by an opposing party, of
2520	an expert as defined in s. 766.102 that there appears to be
2521	evidence of medical negligence. If the court determines that
2522	such certificate of counsel was not made in good faith and that
2523	no justiciable issue was presented against a health care
2524	provider that fully cooperated in providing informal discovery,
2525	the court shall award attorney's fees and taxable costs against
2526	claimant's counsel, and shall submit the matter to The Florida
2527	Bar for disciplinary review of the attorney.
2528	Section 51. Paragraph (a) of subsection (7) of section
2529	766.106, Florida Statutes, is amended, and subsection (13) is
2530	added to said section, to read:
2531	766.106 Notice before filing action for medical
2532	malpractice; presuit screening period; offers for admission of
2533	liability and for arbitration; informal discovery; review.--
2534	(7) Informal discovery may be used by a party to obtain
2535	unsworn statements, the production of documents or things, and
2536	physical and mental examinations, as follows:
2537	(a) Unsworn statements.--Any party may require other
2538	parties to appear for the taking of an unsworn statement. Such
2539	statements may be used only for the purpose of presuit screening
2540	and are not discoverable or admissible in any civil action for
2541	any purpose by any party. However, the statements and opinions
2542	of the expert required by s. 766.203 are subject to discovery
2543	and are admissible in any civil action for any purpose by any
2544	party.A party desiring to take the unsworn statement of any
2545	party must give reasonable notice in writing to all parties. The
2546	notice must state the time and place for taking the statement
2547	and the name and address of the party to be examined. Unless
2548	otherwise impractical, the examination of any party must be done
2549	at the same time by all other parties. Any party may be
2550	represented by counsel at the taking of an unsworn statement. An
2551	unsworn statement may be recorded electronically,
2552	stenographically, or on videotape. The taking of unsworn
2553	statements is subject to the provisions of the Florida Rules of
2554	Civil Procedure and may be terminated for abuses.
2555	(13) If an injured prospective claimant serves a notice of
2556	intent to initiate litigation or files suit under this chapter,
2557	the claimant must execute a medical information release that
2558	allows a defendant or his or her legal representative to conduct
2559	ex parte interviews with the claimant's treating physicians,
2560	which interviews must be limited to those areas that are
2561	potentially relevant to the claimant's alleged injury or
2562	illness.
2563	Section 52. Subsection (11) of section 766.1115, Florida
2564	Statutes, is amended to read:
2565	766.1115 Health care providers; creation of agency
2566	relationship with governmental contractors.--
2567	(11) APPLICABILITY.--This section applies to incidents
2568	occurring on or after April 17, 1992. This section does not
2569	apply to any health care contract entered into by the Department
2570	of Corrections which is subject to s. 768.28(10)(a). This
2571	section does not apply to any affiliation agreement or contract
2572	to provide comprehensive health care services entered into by a
2573	medical school to provide patient services to patients of public
2574	hospitals that is subject to s. 768.28(10)(e).Nothing in this
2575	section in any way reduces or limits the rights of the state or
2576	any of its agencies or subdivisions to any benefit currently
2577	provided under s. 768.28.
2578	Section 53. Subsections (3), (5), (7), and (8) of section
2579	766.202, Florida Statutes, are amended to read:
2580	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
2581	766.201-766.212, the term:
2582	(3) "Economic damages" means financial losses thatwhich
2583	would not have occurred but for the injury giving rise to the
2584	cause of action, including, but not limited to, past and future
2585	medical expenses and 80 percent of wage loss and loss of earning
2586	capacity, to the extent the claimant is entitled to recover such
2587	damages under general law, including the Wrongful Death Act.
2588	(5) "Medical expert" means a person duly and regularly
2589	engaged in the practice of his or her profession who holds a
2590	health care professional degree from a university or college and
2591	who meets the requirements of an expert witness as set forth in
2592	s. 766.102has had special professional training and experience
2593	or one possessed of special health care knowledge or skill about
2594	the subject upon which he or she is called to testify or provide
2595	an opinion.
2596	(7) "Noneconomic damages" means nonfinancial losses which
2597	would not have occurred but for the injury giving rise to the
2598	cause of action, including pain and suffering, inconvenience,
2599	physical impairment, mental anguish, disfigurement, loss of
2600	capacity for enjoyment of life, and other nonfinancial losses,
2601	to the extent the claimant is entitled to recover such damages
2602	under general law, including the Wrongful Death Act.
2603	(8) "Periodic payment" means provision for the structuring
2604	of future economic and future noneconomicdamages payments, in
2605	whole or in part, over a period of time, as follows:
2606	(a) A specific finding must be madeof the dollar amount
2607	of periodic payments which will compensate for these future
2608	damages after offset for collateral sources and after having
2609	been reduced to present valueshall be made. A periodic payment
2610	must be structured to last as long as the claimant lives or the
2611	condition of the claimant for which the award was made persists,
2612	whichever may be shorter, but without regard for the number of
2613	years for which future damages are awarded.The total dollar
2614	amount of the periodic payments shall equal the dollar amount of
2615	all such future damages before any reduction to present value.
2616	(b) A defendant that elects to make periodic payments of
2617	either or both future economic or future noneconomic losses may
2618	contractually obligate a company that is authorized to do
2619	business in this state and rated by A.M. Best Company as A+ or
2620	higher to make those periodic payments on its behalf. Upon a
2621	joint petition by the defendant and the company that is
2622	contractually obligated to make the periodic payments, the court
2623	shall discharge the defendant from any further obligations to
2624	the claimant for those future economic and future noneconomic
2625	damages that are to be paid by that company by periodic
2626	payments.
2627	(c) A bond or security may not be required of any
2628	defendant or company that is obligated to make periodic payments
2629	pursuant to this section; however, if, upon petition by a
2630	claimant who is receiving periodic payments pursuant to this
2631	section, the court finds that there is substantial, competent
2632	evidence that the defendant that is responsible for the periodic
2633	payments cannot adequately ensure full and continuous payments
2634	thereof or that the company that is obligated to make the
2635	payments has been rated by A.M. Best Company as B+ or lower, and
2636	that doing so is in the best interest of the claimant, the court
2637	may require the defendant or the company that is obligated to
2638	make the periodic payments to provide such additional financial
2639	security as the court determines to be reasonable under the
2640	circumstances.
2641	(d) The provision for the periodic payments must specify
2642	the recipient or recipients of the payments, the address to
2643	which the payments are to be delivered, and the amount and
2644	intervals of the payments; however, in any one year, any payment
2645	or payments may not exceed the amount intended by the trier of
2646	fact to be awarded that year, offset for collateral sources. A
2647	periodic payment may not be accelerated, deferred, increased, or
2648	decreased, except by court order based upon the mutual consent
2649	and agreement of the claimant, the defendant, whether or not
2650	discharged, and the company that is obligated to make the
2651	periodic payments, if any; nor may the claimant sell, mortgage,
2652	encumber, or anticipate the periodic payments or any part
2653	thereof, by assignment or otherwise.The defendant shall be
2654	required to post a bond or security or otherwise to assure full
2655	payment of these damages awarded. A bond is not adequate unless
2656	it is written by a company authorized to do business in this
2657	state and is rated A+ by Best's. If the defendant is unable to
2658	adequately assure full payment of the damages, all damages,
2659	reduced to present value, shall be paid to the claimant in a
2660	lump sum. No bond may be canceled or be subject to cancellation
2661	unless at least 60 days' advance written notice is filed with
2662	the court and the claimant. Upon termination of periodic
2663	payments, the security, or so much as remains, shall be returned
2664	to the defendant.
2665	(c) The provision for payment of future damages by
2666	periodic payments shall specify the recipient or recipients of
2667	the payments, the dollar amounts of the payments, the interval
2668	between payments, and the number of payments or the period of
2669	time over which payments shall be made.
2670	Section 54. Subsection (7) of section 766.207, Florida
2671	Statutes, is amended to read:
2672	766.207 Voluntary binding arbitration of medical
2673	negligence claims.--
2674	(7) Arbitration pursuant to this section shall preclude
2675	recourse to any other remedy by the claimant against any
2676	participating defendant, and shall be undertaken with the
2677	understanding that damages shall be awarded as provided by
2678	general law, including the Wrongful Death Act, subject to the
2679	following limitations:
2680	(a) Net economic damages shall be awardable, including,
2681	but not limited to, past and future medical expenses and 80
2682	percent of wage loss and loss of earning capacity, offset by any
2683	collateral source payments.
2684	(b) Noneconomic damages shall be limited to a maximum of
2685	$250,000 per incident, and shall be calculated on a percentage
2686	basis with respect to capacity to enjoy life, so that a finding
2687	that the claimant's injuries resulted in a 50-percent reduction
2688	in his or her capacity to enjoy life would warrant an award of
2689	not more than $125,000 noneconomic damages. Regardless of the
2690	number of individual claimants or defendants, the total
2691	noneconomic damages that may be awarded for all claims arising
2692	out of the same incident, including claims under the Wrongful
2693	Death Act, shall be limited to a maximum of $250,000.
2694	(c) Damages for future economic and future noneconomic
2695	losses shall be awarded to be paid by periodic payments pursuant
2696	to s. 766.202(8) and shall be offset by future collateral source
2697	payments.
2698	(d) Punitive damages shall not be awarded.
2699	(e) The defendant shall be responsible for the payment of
2700	interest on all accrued damages with respect to which interest
2701	would be awarded at trial.
2702	(f) The defendant shall pay the claimant's reasonable
2703	attorney's fees and costs, as determined by the arbitration
2704	panel, but in no event more than 15 percent of the award,
2705	reduced to present value.
2706	(g) The defendant shall pay all the costs of the
2707	arbitration proceeding and the fees of all the arbitrators other
2708	than the administrative law judge.
2709	(h) Each defendant who submits to arbitration under this
2710	section shall be jointly and severally liable for all damages
2711	assessed pursuant to this section.
2712	(i) The defendant's obligation to pay the claimant's
2713	damages shall be for the purpose of arbitration under this
2714	section only. A defendant's or claimant's offer to arbitrate
2715	shall not be used in evidence or in argument during any
2716	subsequent litigation of the claim following the rejection
2717	thereof.
2718	(j) The fact of making or accepting an offer to arbitrate
2719	shall not be admissible as evidence of liability in any
2720	collateral or subsequent proceeding on the claim.
2721	(k) Any offer by a claimant to arbitrate must be made to
2722	each defendant against whom the claimant has made a claim. Any
2723	offer by a defendant to arbitrate must be made to each claimant
2724	who has joined in the notice of intent to initiate litigation,
2725	as provided in s. 766.106. A defendant who rejects a claimant's
2726	offer to arbitrate shall be subject to the provisions of s.
2727	766.209(3). A claimant who rejects a defendant's offer to
2728	arbitrate shall be subject to the provisions of s. 766.209(4).
2729	(l) The hearing shall be conducted by all of the
2730	arbitrators, but a majority may determine any question of fact
2731	and render a final decision. The chief arbitrator shall decide
2732	all evidentiary matters.
2733
2734	The provisions of this subsection shall not preclude settlement
2735	at any time by mutual agreement of the parties.
2736	Section 55. Paragraph (a) of subsection (4) of section
2737	766.209, Florida Statutes, is amended to read:
2738	766.209 Effects of failure to offer or accept voluntary
2739	binding arbitration.--
2740	(4) If the claimant rejects a defendant's offer to enter
2741	voluntary binding arbitration:
2742	(a) The damages awardable at trial shall be limited to net
2743	economic damages, plus noneconomic damages not to exceed
2744	$350,000 per incident. Regardless of the number of individual
2745	claimants or defendants, the total noneconomic damages that may
2746	be awarded for all claims arising out of the same incident,
2747	including claims under the Wrongful Death Act, shall be limited
2748	to a maximum of $350,000.The Legislature expressly finds that
2749	such conditional limit on noneconomic damages is warranted by
2750	the claimant's refusal to accept arbitration, and represents an
2751	appropriate balance between the interests of all patients who
2752	ultimately pay for medical negligence losses and the interests
2753	of those patients who are injured as a result of medical
2754	negligence.
2755	Section 56. Section 766.213, Florida Statutes, is created
2756	to read:
2757	766.213 Periodic payment of damages upon death of
2758	claimant.--Any portion of a periodic payment made pursuant to a
2759	settlement or jury award or pursuant to mediation or arbitration
2760	which is attributable to medical expenses that have not yet been
2761	incurred shall terminate upon the death of the claimant. Any
2762	outstanding medical expenses incurred prior to the death of the
2763	claimant shall be paid from that portion of the periodic payment
2764	attributable to medical expenses.
2765	Section 57. Subsection (4) is added to section 766.309,
2766	Florida Statutes, to read:
2767	766.309 Determination of claims; presumption; findings of
2768	administrative law judge binding on participants.--
2769	(4) If the claim is determined to be compensable, and the
2770	claimants have the option of proceeding to circuit court either
2771	against a party who failed to give the notice required under s.
2772	766.316, or under the exception provided in s. 766.303(2) for
2773	bad faith or malicious purpose or willful and wanton disregard
2774	of human rights, safety, or property, then the claimants must
2775	elect either to:
2776	(a) Accept the benefits provided under the plan, and be
2777	barred from filing a civil action arising out of or related to a
2778	medical malpractice claim with respect to the birth-related
2779	neurological injury; or
2780	(b) Decline the benefits provided under the plan and
2781	proceed in circuit court. Such election shall be made within 60
2782	days from the date the order of the administrative law judge
2783	becomes final, including any appeal, and shall be binding on the
2784	claimants.
2785	Section 58. Subsection (4) is added to section 768.041,
2786	Florida Statutes, to read:
2787	768.041 Release or covenant not to sue.--
2788	(4)(a) At trial pursuant to a suit filed under chapter
2789	766, or at trial pursuant to s. 766.209, if any defendant shows
2790	the court that the plaintiff, or his or her legal
2791	representative, has delivered a written release or covenant not
2792	to sue to any person in partial satisfaction of damages
2793	resulting from the same injury or injuries, the court shall set
2794	off this amount from the amount of any judgment to which the
2795	plaintiff would otherwise be entitled at the time of rendering
2796	judgment, regardless of whether the jury has allocated fault to
2797	the settling defendant at trial.
2798	(b) The amount of the setoff must include all sums received
2799	by the plaintiff, including economic and noneconomic damages,
2800	costs, and attorney's fees, and shall be applied against the
2801	total damages, after reduction for any comparative negligence of
2802	the plaintiff, rather than against the apportioned damages
2803	caused by a particular defendant.
2804	(c) A defendant entering into a settlement agreement with
2805	a plaintiff may assign any right of contribution arising under
2806	section 768.31, as a consequence of having paid more than his or
2807	her proportionate share of the entire liability.
2808	Section 59. Subsection (2) of section 768.13, Florida
2809	Statutes, is amended to read:
2810	768.13 Good Samaritan Act; immunity from civil
2811	liability.--
2812	(2)(a) Any person, including those licensed to practice
2813	medicine, who gratuitously and in good faith renders emergency
2814	care or treatment either in direct response to emergency
2815	situations related to and arising out of a public health
2816	emergency declared pursuant to s. 381.00315, a state of
2817	emergency which has been declared pursuant to s. 252.36 or at
2818	the scene of an emergency outside of a hospital, doctor's
2819	office, or other place having proper medical equipment, without
2820	objection of the injured victim or victims thereof, shall not be
2821	held liable for any civil damages as a result of such care or
2822	treatment or as a result of any act or failure to act in
2823	providing or arranging further medical treatment where the
2824	person acts as an ordinary reasonably prudent person would have
2825	acted under the same or similar circumstances.
2826	(b)1. Any health care provider, including ahospital
2827	licensed under chapter 395, providing emergency services
2828	pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s.
2829	395.401, s. 395.1041, or s. 401.45any employee of such hospital
2830	working in a clinical area within the facility and providing
2831	patient care, and any person licensed to practice medicine who
2832	in good faith renders medical care or treatment necessitated by
2833	a sudden, unexpected situation or occurrence resulting in a
2834	serious medical condition demanding immediate medical attention,
2835	for which the patient enters the hospital through its emergency
2836	room or trauma center, or necessitated by a public health
2837	emergency declared pursuant to s. 381.00315shall not be held
2838	liable for any civil damages as a result of such medical care or
2839	treatment unless such damages result from providing, or failing
2840	to provide, medical care or treatment under circumstances
2841	demonstrating a reckless disregard for the consequences so as to
2842	affect the life or health of another. A health care provider
2843	under this paragraph does not include a licensed health care
2844	practitioner who is providing emergency services to a person
2845	with whom the practitioner has an established provider-patient
2846	relationship outside of the emergency room setting.
2847	2. The immunity provided by this paragraph appliesdoes
2848	not applyto damages as a result of any act or omission of
2849	providing medical care or treatment, including diagnosis:
2850	a. Which occurs prior to the timeafterthe patient is
2851	stabilized and is capable of receiving medical treatment as a
2852	nonemergency patient, unless surgery is required as a result of
2853	the emergency within a reasonable time after the patient is
2854	stabilized, in which case the immunity provided by this
2855	paragraph applies to any act or omission of providing medical
2856	care or treatment which occurs prior to the stabilization of the
2857	patient following the surgery.; or
2858	b. Which is relatedUnrelatedto the original medical
2859	emergency.
2860	3. For purposes of this paragraph, "reckless disregard" as
2861	it applies to a given health care provider rendering emergency
2862	medical services shall be such conduct thatwhicha health care
2863	provider knew or should have known, at the time such services
2864	were rendered, created an unreasonable risk of injury so as to
2865	affect the life or health of another, and such risk was
2866	substantially greater than that which is necessary to make the
2867	conduct negligent.would be likely to result in injury so as to
2868	affect the life or health of another, taking into account the
2869	following to the extent they may be present;
2870	a. The extent or serious nature of the circumstances
2871	prevailing.
2872	b. The lack of time or ability to obtain appropriate
2873	consultation.
2874	c. The lack of a prior patient-physician relationship.
2875	d. The inability to obtain an appropriate medical history
2876	of the patient.
2877	e. The time constraints imposed by coexisting emergencies.
2878	4. Every emergency care facility granted immunity under
2879	this paragraph shall accept and treat all emergency care
2880	patients within the operational capacity of such facility
2881	without regard to ability to pay, including patients transferred
2882	from another emergency care facility or other health care
2883	provider pursuant to Pub. L. No. 99-272, s. 9121. The failure of
2884	an emergency care facility to comply with this subparagraph
2885	constitutes grounds for the department to initiate disciplinary
2886	action against the facility pursuant to chapter 395.
2887	(c)1. Any health care practitioner as defined in s.
2888	456.001(4) who is in a hospital attending to a patient of his or
2889	her practice or for business or personal reasons unrelated to
2890	direct patient care, and who voluntarily responds to provide
2891	care or treatment to a patient with whom at that time the
2892	practitioner does not have a then-existing health care patient-
2893	physician relationship, and when such care or treatment is
2894	necessitated by a sudden or unexpected situation or by an
2895	occurrence that demands immediate medical attention, shall not
2896	be held liable for any civil damages as a result of any act or
2897	omission relative to that care or treatment, unless that care or
2898	treatment is proven to amount to conduct that is willful and
2899	wanton and would likely result in injury so as to affect the
2900	life or health of another.
2901	2. The immunity provided by this paragraph does not apply
2902	to damages as a result of any act or omission of providing
2903	medical care or treatment unrelated to the original situation
2904	that demanded immediate medical attention.
2905	3. For purposes of this paragraph, the Legislature's
2906	intent is to encourage health care practitioners to provide
2907	necessary emergency care to all persons without fear of
2908	litigation as described in this paragraph.
2909	(c) Any person who is licensed to practice medicine, while
2910	acting as a staff member or with professional clinical
2911	privileges at a nonprofit medical facility, other than a
2912	hospital licensed under chapter 395, or while performing health
2913	screening services, shall not be held liable for any civil
2914	damages as a result of care or treatment provided gratuitously
2915	in such capacity as a result of any act or failure to act in
2916	such capacity in providing or arranging further medical
2917	treatment, if such person acts as a reasonably prudent person
2918	licensed to practice medicine would have acted under the same or
2919	similar circumstances.
2920	Section 60. Legislative findings and intent.--
2921	(1) EMERGENCY SERVICES AND CARE.--
2922	(a) The Legislature finds and declares it to be of vital
2923	importance that emergency services and care be provided by
2924	hospitals, physicians, and emergency medical services providers
2925	to every person in need of such care.
2926	(b) The Legislature finds that emergency services and care
2927	providers are critical elements in responding to disaster and
2928	emergency situations that might affect our local communities,
2929	state, and country.
2930	(c) The Legislature recognizes the importance of
2931	maintaining a viable system of providing for the emergency
2932	medical needs of the state's residents and visitors.
2933	(d) The Legislature and the Federal Government have
2934	required such providers of emergency medical services and care
2935	to provide emergency services and care to all persons who
2936	present to hospitals seeking such care.
2937	(e) The Legislature finds that the Legislature has further
2938	mandated that prehospital emergency medical treatment or
2939	transport may not be denied by emergency medical services
2940	providers to persons who have or are likely to have an emergency
2941	medical condition.
2942	(f) Such governmental requirements have imposed a
2943	unilateral obligation for emergency services and care providers
2944	to provide services to all persons seeking emergency care
2945	without ensuring payment or other consideration for provision of
2946	such care.
2947	(g) The Legislature also recognizes that emergency
2948	services and care providers provide a significant amount of
2949	uncompensated emergency medical care in furtherance of such
2950	governmental interest.
2951	(h) The Legislature finds that a significant proportion of
2952	the residents of this state who are uninsured or are Medicaid or
2953	Medicare recipients are unable to access needed health care
2954	because health care providers fear the increased risk of medical
2955	malpractice liability.
2956	(i) The Legislature finds that such patients, in order to
2957	obtain medical care, are frequently forced to seek care through
2958	providers of emergency medical services and care.
2959	(j) The Legislature finds that providers of emergency
2960	medical services and care in this state have reported
2961	significant problems with both the availability and
2962	affordability of professional liability coverage.
2963	(k) The Legislature finds that medical malpractice
2964	liability insurance premiums have increased dramatically, and a
2965	number of insurers have ceased providing medical malpractice
2966	insurance coverage for emergency medical services and care in
2967	this state. This results in a functional unavailability of
2968	medical malpractice insurance coverage for some providers of
2969	emergency medical services and care.
2970	(l) The Legislature further finds that certain specialist
2971	physicians have resigned from serving on hospital staffs or have
2972	otherwise declined to provide on-call coverage to hospital
2973	emergency departments due to increased medical malpractice
2974	liability exposure created by treating such emergency department
2975	patients.
2976	(m) It is the intent of the Legislature that hospitals,
2977	emergency medical services providers, and physicians be able to
2978	ensure that patients who might need emergency medical services
2979	treatment or transportation or who present to hospitals for
2980	emergency medical services and care have access to such needed
2981	services.
2982	(2) PUBLIC HOSPITALS AND AFFILIATIONS WITH NOT-FOR-PROFIT
2983	COLLEGES AND UNIVERSITIES WITH MEDICAL SCHOOLS AND OTHER HEALTH
2984	CARE PRACTITIONER EDUCATIONAL PROGRAMS.--
2985	(a) The Legislature finds that access to quality,
2986	affordable health care for all Floridians is a necessary goal
2987	for the state and that public hospitals play an essential role
2988	in providing access to comprehensive health care services.
2989	(b) The Legislature further finds that access to quality
2990	health care at public hospitals is enhanced when public
2991	hospitals affiliate and coordinate their common endeavors with
2992	medical schools. These affiliations have proven to be an
2993	integral part of the delivery of more efficient and economical
2994	health care services to patients of public hospitals by offering
2995	quality graduate medical education programs to resident
2996	physicians who provide patient services at public hospitals.
2997	These affiliations ensure continued access to quality
2998	comprehensive health care services for Floridians and,
2999	therefore, should be encouraged in order to maintain and expand
3000	such services.
3001	(c) The Legislature finds that when medical schools
3002	affiliate or enter into contracts with public hospitals to
3003	provide comprehensive health care services to patients of public
3004	hospitals, they greatly increase their exposure to claims
3005	arising out of alleged medical malpractice and other allegedly
3006	negligent acts because some colleges and universities and their
3007	medical schools and employees do not have the same level of
3008	protection against liability claims as governmental entities and
3009	their public employees providing the same patient services to
3010	the same public hospital patients.
3011	(d) The Legislature finds that the high cost of
3012	litigation, unequal liability exposure, and increased medical
3013	malpractice insurance premiums have adversely impacted the
3014	ability of some medical schools to permit their employees to
3015	provide patient services to patients of public hospitals. This
3016	finding is consistent with the report issued in April 2002 by
3017	the American Medical Association declaring Florida to be one of
3018	12 states in the midst of a medical liability insurance crisis.
3019	The crisis in the availability and affordability of medical
3020	malpractice insurance is a contributing factor in the reduction
3021	of access to quality health care in the state, which has
3022	declined significantly. In 1988, 33 hospitals were owned or
3023	operated by the state and local governments or established as
3024	taxing districts. In 1991, that number had dropped to 28. In
3025	2001, only 18 such hospitals remained, seven of which are
3026	concentrated in one county. If corrective action is not taken,
3027	this health care crisis will lead to a continued reduction of
3028	patient services in public hospitals.
3029	(e) The Legislature finds that the public is better served
3030	and will benefit from corrective action to address the foregoing
3031	concerns. It is imperative that the Legislature further the
3032	public benefit by conferring sovereign immunity upon colleges
3033	and universities, their medical schools, and their employees
3034	when, pursuant to an affiliation agreement or a contract to
3035	provide comprehensive health care services, they provide patient
3036	services to patients of public hospitals.
3037	(f) It is the intent of the Legislature that colleges and
3038	universities that affiliate with public hospitals be granted
3039	sovereign immunity under s. 768.28, Florida Statutes, in the
3040	same manner and to the same extent as the state and its agencies
3041	and political subdivisions. It is also the intent of the
3042	Legislature that employees of colleges and universities that
3043	provide patient services to patients of a public hospital be
3044	immune from lawsuits in the same manner and to the same extent
3045	as employees and agents of the state and its agencies and
3046	political subdivisions and, further, that they shall not be held
3047	personally liable in tort or named as a party defendant in an
3048	action while performing patient services except as provided in
3049	s. 768.28(9)(a), Florida Statutes.
3050	Section 61. Paragraph (b) of subsection (9) of section
3051	768.28, Florida Statutes, is amended, and paragraph (e) is added
3052	to subsection (10) of said section, to read:
3053	768.28 Waiver of sovereign immunity in tort actions;
3054	recovery limits; limitation on attorney fees; statute of
3055	limitations; exclusions; indemnification; risk management
3056	programs.--
3057	(9)
3058	(b) As used in this subsection, the term:
3059	1. "Employee" includes any volunteer firefighter.
3060	2. "Officer, employee, or agent" includes, but is not
3061	limited to, any employee of a medical school or other health
3062	care practitioner training program in a college or university
3063	that enters into an affiliation agreement or contract to allow
3064	its employees to provide patient services to patients treated at
3065	a public statutory teaching hospital or other health care
3066	facility owned by a governmental entity or at other locations
3067	under contract with a governmental entity to provide patient
3068	services to patients at such facility pursuant to paragraph
3069	(10)(e); any faculty member or other health care professional,
3070	practitioner, or ancillary caregiver or employee of a college or
3071	university or its medical school that enters into an affiliation
3072	agreement or a contract to provide comprehensive health care
3073	services with a public hospital or its governmental owner, and
3074	who provides patient services to patients of a public hospital
3075	pursuant to paragraph (10)(e);any health care provider when
3076	providing services pursuant to s. 766.1115;,any member of the
3077	Florida Health Services Corps, as defined in s. 381.0302, who
3078	provides uncompensated care to medically indigent persons
3079	referred by the Department of Health;,andany public defender
3080	or her or his employee or agent, including, among others, an
3081	assistant public defender and an investigator; and any emergency
3082	health care provider acting pursuant to obligations imposed by
3083	ss. 395.1041, 395.401, and 401.45. Except for persons or
3084	entities that are otherwise covered under this section,
3085	emergency health care providers shall be considered agents of
3086	the State of Florida, Department of Health, and shall indemnify
3087	the state for the reasonable costs of defense and indemnity
3088	payments, if any, up to the liability limits set forth in this
3089	chapter. For purposes of this subsection, the term "emergency
3090	health care providers" includes all persons and entities covered
3091	under or providing services pursuant obligations imposed by ss.
3092	395.1041, 395.401, and 401.45. Such emergency health care
3093	providers shall include an emergency medical services provider
3094	licensed under chapter 401 and persons operating as employees or
3095	agents of such emergency medical services provider; a hospital
3096	licensed under chapter 395 and persons operating as employees or
3097	agents of such hospital; a physician or dentist licensed under
3098	chapter 458, chapter 459, chapter 460, chapter 461, or chapter
3099	466; a physician assistant licensed under chapter 458 or chapter
3100	459; an emergency medical technician or paramedic certified
3101	under chapter 401; a registered nurse, nurse midwife, licensed
3102	practical nurse, or advanced registered nurse practitioner
3103	licensed or registered under part I of chapter 464; a midwife
3104	licensed under chapter 467; a health care professional
3105	association and its employees or agents or a corporate medical
3106	group and its employees or agents; any student or medical
3107	resident who is enrolled in an accredited program or licensed
3108	program that prepares the student for licensure or certification
3109	in any one of the professions listed in this subsection; the
3110	program that prepares the student for licensure or
3111	certification; any entity responsible for training of the
3112	student or medical resident; and any other person or entity that
3113	is providing services pursuant to obligations imposed by s.
3114	395.1041 or s. 401.45. For purposes of this subsection,
3115	"emergency medical services" means ambulance assessment,
3116	treatment, or transport services provided pursuant to
3117	obligations imposed by s. 395.1041 or s. 401.45; all screening,
3118	examination, and evaluation by a physician, hospital, or other
3119	person or entity acting pursuant to obligations imposed by s.
3120	395.1041; and the care, treatment, surgery, or other medical
3121	services provided, whether as an outpatient or inpatient, to
3122	relieve or eliminate the emergency medical condition, including
3123	all medical services to eliminate the likelihood that the
3124	emergency medical condition will deteriorate or recur without
3125	further medical attention within a reasonable period of time.
3126	(10)
3127	(e) Any not-for-profit college or university with a
3128	medical, dental, or nursing school, or any other academic
3129	program of medical education that is accredited by any
3130	association, agency, council, commission, or accrediting body
3131	recognized by the state as a condition for licensure of its
3132	graduates, that has entered into an affiliation agreement or a
3133	contract to allow its faculty, its health care professionals,
3134	practitioners, and ancillary caregivers, and its employees to
3135	provide patient services to hospital patients treated at a
3136	public hospital shall, along with the employees of such medical
3137	or other school or program, be deemed agents of the governmental
3138	entity responsible for the public hospital for purposes of this
3139	section and shall be immune from liability for torts in the same
3140	manner and to the same extent as the state and its agencies and
3141	subdivisions while providing patient services. For the purpose
3142	of this paragraph, "public hospital" means a statutory teaching
3143	hospital or any other health care facility owned or used by the
3144	state or by a county, municipality, public authority, special
3145	taxing district with health care responsibilities, or other
3146	local governmental entity or at other locations under contract
3147	with the governmental entity. For the purpose of this paragraph,
3148	"patient services" includes comprehensive health care services
3149	as defined in s. 641.19, including related administrative
3150	services to patients of a public hospital and the supervision of
3151	interns, residents, and fellows providing patient services to
3152	patients of a public hospital and access to participation in
3153	medical research protocols. No such employee or agent of a
3154	college or university or their medical schools or other health
3155	care practitioner educational schools or programs shall be
3156	personally liable in tort or named as a party defendant in any
3157	action arising from the provision of services to patients in a
3158	public hospital, except as provided in s. 768.28(9)(a).
3159	Section 62. Section 768.77, Florida Statutes, is amended
3160	to read:
3161	768.77 Itemized verdict.--
3162	(1) Except as provided in subsection (2),in any action to
3163	which this part applies in which the trier of fact determines
3164	that liability exists on the part of the defendant, the trier of
3165	fact shall, as a part of the verdict, itemize the amounts to be
3166	awarded to the claimant into the following categories of
3167	damages:
3168	(a)(1)Amounts intended to compensate the claimant for
3169	economic losses.;
3170	(b)(2)Amounts intended to compensate the claimant for
3171	noneconomic losses.; and
3172	(c)(3)Amounts awarded to the claimant for punitive
3173	damages, if applicable.
3174	(2) In any action for damages based on personal injury or
3175	wrongful death arising out of medical malpractice, whether in
3176	tort or contract, to which this part applies in which the trier
3177	of fact determines that liability exists on the part of the
3178	defendant, the trier of fact shall, as a part of the verdict,
3179	itemize the amounts to be awarded to the claimant into the
3180	following categories of damages:
3181	(a) Amounts intended to compensate the claimant for:
3182	1. Past economic losses.
3183	2. Future economic losses, not reduced to present value,
3184	and the number of years or part thereof which the award is
3185	intended to cover.
3186	(b) Amounts intended to compensate the claimant for:
3187	1. Past noneconomic losses.
3188	2. Future noneconomic losses, not reduced to present
3189	value, and the number of years or part thereof which the award
3190	is intended to cover.
3191	(c) Amounts awarded to the claimant for punitive damages,
3192	if applicable.
3193	Section 63. Section 766.1067, Florida Statutes, is created
3194	to read:
3195	766.1067 Mandatory mediation after suit is filed.--Within
3196	120 days after suit being filed, unless such period is extended
3197	by mutual agreement of all parties, all parties shall attend in-
3198	person mandatory mediation in accordance with s. 44.102 if
3199	binding arbitration under s. 766.106 or s. 766.207 has not been
3200	agreed to by the parties. The Florida Rules of Civil Procedure
3201	shall apply to mediation held pursuant to this section.
3202	Section 64. Section 766.118, Florida Statutes, is created
3203	to read:
3204	766.118 Determination of noneconomic damages.--With
3205	respect to a cause of action for personal injury or wrongful
3206	death resulting from medical negligence, including actions
3207	pursuant to s. 766.209, damages recoverable for noneconomic
3208	losses to compensate for pain and suffering, inconvenience,
3209	physical impairment, mental anguish, disfigurement, loss of
3210	capacity for enjoyment of life, and all other noneconomic
3211	damages shall not exceed $250,000, regardless of the number of
3212	claimants or defendants involved in the action.
3213	Section 65. Paragraph (a) of subsection (1) and subsection
3214	(2) of section 768.78, Florida Statutes, are amended to read:
3215	768.78 Alternative methods of payment of damage awards.--
3216	(1)(a) In any action to which this part applies in which
3217	the court determines that an award to compensate the claimant
3218	includes future economic losses which exceed $250,000, payment
3219	of amounts intended to compensate the claimant for these losses
3220	shall be made by one of the following means, unless an
3221	alternative method of payment of damages is provided in this
3222	section:
3223	1. The defendant may make a lump-sum payment for all
3224	damages so assessed, with future economic losses and expenses
3225	reduced to present value; or
3226	2. Subject to the provisions of this subsection, the court
3227	shall, at the request of either party, unless the court
3228	determines that manifest injustice would result to any party,
3229	enter a judgment ordering future economic damages, as itemized
3230	pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid in
3231	whole or in part by periodic payments rather than by a lump-sum
3232	payment.
3233	(2)(a) In any action for damages based on personal injury
3234	or wrongful death arising out of medical malpractice, whether in
3235	tort or contract, in which the trier of fact makes an award to
3236	compensate the claimant for future economic or future
3237	noneconomiclosses, payment of amounts intended to compensate
3238	the claimant for these futurelosses shall be made by one of the
3239	following means:
3240	1. The defendant may elect to make a lump-sum payment for
3241	theall damages so assessed, with future economic or future
3242	noneconomic losses, or both, after offset for collateral sources
3243	and after having beenand expenses reduced to present value by
3244	the court based upon competent, substantial evidence presented
3245	to it by the parties; or
3246	2. The defendant, if determined by the court to be
3247	financially capable or adequately insured, may elect to use
3248	periodic payments to satisfy in whole or in part the assessed
3249	future economic and future noneconomic losses awarded by the
3250	trier of fact after offset for collateral sources for so long as
3251	the claimant lives or the condition for which the award was made
3252	persists, whichever period may be shorter, but without regard
3253	for the number of years awarded by the trier of fact. The court
3254	shall review and, unless clearly unresponsive to the future
3255	needs of the claimant, approve the amounts and schedule of the
3256	periodic payments proposed by the defendant. Upon motion of the
3257	defendant, whether or not discharged from any obligation to make
3258	the payments pursuant to paragraph (b), and the establishment by
3259	substantial, competent evidence of either the death of the
3260	claimant or that the condition for which the award was made no
3261	longer persists, the court shall enter an order terminating the
3262	periodic payments effective as of the date of the death of the
3263	claimant or the date the condition for which the award was made
3264	no longer persistedThe court shall, at the request of either
3265	party, enter a judgment ordering future economic damages, as
3266	itemized pursuant to s. 768.77, to be paid by periodic payments
3267	rather than lump sum.
3268	(b) A defendant who elects to make periodic payments of
3269	future economic or future noneconomic losses, or both, may
3270	contractually obligate a company that is authorized to do
3271	business in this state and rated by A.M. Best Company as A+ or
3272	higher to make those periodic payments on its behalf. Upon a
3273	joint petition by the defendant and the company that is
3274	contractually obligated to make the periodic payments, the court
3275	shall discharge the defendant from any further obligations to
3276	the claimant for those future economic and future noneconomic
3277	damages that are to be paid by that company by periodic
3278	payments.
3279	(c) Upon notice of a defendant's election to make periodic
3280	payments pursuant to this section, the claimant may request that
3281	the court modify the periodic payments to reasonably provide for
3282	attorney's fees; however, a court may not make any such
3283	modification that would increase the amount the defendant would
3284	have been obligated to pay had no such adjustment been made.
3285	(d) A bond or security may not be required of any
3286	defendant or company that is obligated to make periodic payments
3287	pursuant to this section; however, if, upon petition by a
3288	claimant who is receiving periodic payments pursuant to this
3289	section, the court finds that there is substantial, competent
3290	evidence that the defendant who is responsible for the periodic
3291	payments cannot adequately ensure full and continuous payments
3292	thereof or that the company that is obligated to make the
3293	payments has been rated by A.M. Best Company as B+ or lower, and
3294	that doing so is in the best interest of the claimant, the court
3295	may require the defendant or the company that is obligated to
3296	make the periodic payments to provide such additional financial
3297	security as the court determines to be reasonable under the
3298	circumstances.
3299	(e) The provision for the periodic payments must specify
3300	the recipient or recipients of the payments, the address to
3301	which the payments are to be delivered, and the amount and
3302	intervals of the payments; however, in any one year any payment
3303	or payments may not exceed the amount intended by the trier of
3304	fact to be awarded each year, offset for collateral sources. A
3305	periodic payment may not be accelerated, deferred, increased, or
3306	decreased, except by court order based upon the mutual consent
3307	and agreement of the claimant, the defendant, whether or not
3308	discharged, and the company that is obligated to make the
3309	periodic payments, if any; nor may the claimant sell, mortgage,
3310	encumber, or anticipate the periodic payments, or any part
3311	thereof, by assignment or otherwise.
3312	(f) For purposes of this section, the term "periodic
3313	payment" means the payment of money or delivery of other
3314	property to the claimant at regular intervals.
3315	(g) It is the intent of the Legislature to authorize and
3316	encourage the payment of awards for future economic and future
3317	noneconomic losses by periodic payments to meet the continuing
3318	needs of the patient while eliminating the misdirection of such
3319	funds for purposes not intended by the trier of fact.
3320	(b) For purposes of this subsection, "periodic payment"
3321	means provision for the spreading of future economic damage
3322	payments, in whole or in part, over a period of time, as
3323	follows:
3324	1. A specific finding of the dollar amount of periodic
3325	payments which will compensate for these future damages after
3326	offset for collateral sources shall be made. The total dollar
3327	amount of the periodic payments shall equal the dollar amount of
3328	all such future damages before any reduction to present value.
3329	2. The defendant shall be required to post a bond or
3330	security or otherwise to assure full payment of these damages
3331	awarded. A bond is not adequate unless it is written by a
3332	company authorized to do business in this state and is rated A+
3333	by Best's. If the defendant is unable to adequately assure full
3334	payment of the damages, all damages, reduced to present value,
3335	shall be paid to the claimant in a lump sum. No bond may be
3336	canceled or be subject to cancellation unless at least 60 days'
3337	advance written notice is filed with the court and the claimant.
3338	Upon termination of periodic payments, the security, or so much
3339	as remains, shall be returned to the defendant.
3340	3. The provision for payment of future damages by periodic
3341	payments shall specify the recipient or recipients of the
3342	payments, the dollar amounts of the payments, the interval
3343	between payments, and the number of payments or the period of
3344	time over which payments shall be made.
3345	Section 66. Subsection (1) of section 766.112, Florida
3346	Statutes, is amended to read:
3347	766.112 Comparative fault.--
3348	(1) Notwithstanding any provision ofanything inlaw to
3349	the contrary, in an action for damages for personal injury or
3350	wrongful death arising out of medical malpractice, whether in
3351	contract or tort, when an apportionment of damages pursuant to
3352	this section is attributed to a teaching hospital as defined in
3353	s. 408.07, the court shall enter judgment against the teaching
3354	hospital on the basis of eachsuchparty's percentage of fault
3355	and not on the basis of the doctrine of joint and several
3356	liability.
3357	Section 67. Subsection (5) of section 768.81, Florida
3358	Statutes, is amended to read:
3359	768.81 Comparative fault.--
3360	(5) Notwithstanding any provision ofanything inlaw to
3361	the contrary, in an action for damages for personal injury or
3362	wrongful death arising out of medical malpractice, whether in
3363	contract or tort, when an apportionment of damages pursuant to
3364	this section is attributed to a teaching hospital as defined in
3365	s. 408.07, the court shall enter judgment against the teaching
3366	hospital on the basis of eachsuchparty's percentage of fault
3367	and not on the basis of the doctrine of joint and several
3368	liability.
3369	Section 68. Section 1004.08, Florida Statutes, is created
3370	to read:
3371	1004.08 Patient safety instructional requirements.--Every
3372	public school, college, and university that offers degrees in
3373	medicine, nursing, and allied health shall include in the
3374	curricula applicable to such degrees material on patient safety,
3375	including patient safety improvement. Materials shall include,
3376	but need not be limited to, effective communication and
3377	teamwork; epidemiology of patient injuries and medical errors;
3378	vigilance, attention, and fatigue; checklists and inspections;
3379	automation and technological and computer support; psychological
3380	factors in human error; and reporting systems.
3381	Section 69. Section 1005.07, Florida Statutes, is created
3382	to read:
3383	1005.07 Patient safety instructional requirements.--Every
3384	nonpublic school, college, and university that offers degrees in
3385	medicine, nursing, and allied health shall include in the
3386	curricula applicable to such degrees material on patient safety,
3387	including patient safety improvement. Materials shall include,
3388	but need not be limited to, effective communication and
3389	teamwork; epidemiology of patient injuries and medical errors;
3390	vigilance, attention, and fatigue; checklists and inspections;
3391	automation and technological and computer support; psychological
3392	factors in human error; and reporting systems.
3393	Section 70. (1) The Department of Health shall study and
3394	report to the Legislature as to whether medical review panels
3395	should be included as part of the presuit process in medical
3396	malpractice litigation. Medical review panels review a medical
3397	malpractice case during the presuit process and make judgments
3398	on the merits of the case based on established standards of care
3399	with the intent of reducing the number of frivolous claims. The
3400	panel's report could be used as admissible evidence at trial or
3401	for other purposes. The department's report should address:
3402	(a) Historical use of medical review panels and similar
3403	pretrial programs in this state, including the mediation panels
3404	created by chapter 75-9, Laws of Florida.
3405	(b) Constitutional issues relating to the use of medical
3406	review panels.
3407	(c) The use of medical review panels or similar programs
3408	in other states.
3409	(d) Whether medical review panels or similar panels should
3410	be created for use during the presuit process.
3411	(e) Other recommendations and information that the
3412	department deems appropriate.
3413	(f) In submitting its report with respect to paragraphs
3414	(a)-(c), the department should identify at a minimum:
3415	1. The percentage of medical malpractice claims submitted
3416	to the panels during the time period the panels were in
3417	existence.
3418	2. The percentage of claims that were settled while the
3419	panels were in existence and the percentage of claims that were
3420	settled in the 3 years prior to the establishment of such panels
3421	or, for each panel which no longer exists, 3 years after the
3422	dissolution of such panels.
3423	3. In those state where panels have been discontinued,
3424	whether additional safeguards have been implemented to avoid the
3425	filing of frivolous lawsuits and what those additional
3426	safeguards are.
3427	4. How the rates for medical malpractice insurance in
3428	states utilizing such panels compares with the rates in states
3429	not utilizing such panels.
3430	5. Whether, and to what extent, a finding by a panel is
3431	subject to review and the burden of proof required to overcome a
3432	finding by the panel.
3433	(2) If the department finds that medical review panels or
3434	a similar structure should be created in this state, it shall
3435	include draft legislation to implement its recommendations in
3436	its report.
3437	(3) The department shall submit its report to the Speaker
3438	of the House of Representatives and the President of the Senate
3439	no later than December 31, 2003.
3440	Section 71. The Agency for Health Care Administration is
3441	directed to study the types of information the public would find
3442	relevant in the selection of hospitals and physicians. The
3443	agency shall review and recommend appropriate methods of
3444	collection, analysis, and dissemination of that information. The
3445	agency shall complete its study and report its findings and
3446	recommendations to the Speaker of the House of Representatives
3447	and the President of the Senate by January 15, 2004.
3448	Section 72. The Office of Program Policy Analysis and
3449	Government Accountability shall complete a study of the
3450	eligibility requirements for a birth to be covered under the
3451	Florida Birth-Related Neurological Injury Compensation
3452	Association and submit a report to the Speaker of the House of
3453	Representatives and the President of the Senate by January 1,
3454	2004, recommending whether or not the statutory criteria for a
3455	claim to qualify for referral to the Florida Birth-Related
3456	Neurological Injury Compensation Association under s. 766.302,
3457	Florida Statutes, should be modified.
3458	Section 73. The Office of Program Policy Analysis and
3459	Government Accountability and the Office of the Auditor General
3460	must jointly conduct an audit of the Department of Health's
3461	health care practitioner disciplinary process and closed claims
3462	that are filed with the department under s. 627.912, Florida
3463	Statutes. The Office of Program Policy Analysis and Government
3464	Accountability and the Office of the Auditor General shall
3465	submit a report to the Speaker of the House of Representatives
3466	and the President of the Senate by January 1, 2004.
3467	Section 74. Comprehensive study and report on the creation
3468	of a Patient Safety Authority.--
3469	(1) The Agency for Health Care Administration, in
3470	consultation with the Department of Health, is directed to study
3471	the need for, and the implementation requirements of,
3472	establishing a Patient Safety Authority. The authority would be
3473	responsible for performing activities and functions designed to
3474	improve patient safety and the quality of care delivered by
3475	health care facilities and health care practitioners.
3476	(2) In undertaking its study, the agency shall examine and
3477	evaluate a Patient Safety Authority that would, either directly
3478	or by contract:
3479	(a) Analyze information concerning adverse incidents
3480	reported to the Agency for Health Care Administration pursuant
3481	to s. 395.0197, Florida Statutes, for the purpose of
3482	recommending changes in practices and procedures that may be
3483	implemented by health care practitioners and health care
3484	facilities to prevent future adverse incidents.
3485	(b) Collect, analyze, and evaluate patient safety data
3486	submitted voluntarily by a health care practitioner or health
3487	care facility. The authority would communicate to health care
3488	practitioners and health care facilities changes in practices
3489	and procedures that may be implemented for the purpose of
3490	improving patient safety and preventing future patient safety
3491	events from resulting in serious injury or death. At a minimum,
3492	the authority would:
3493	1. Be designed and operated by an individual or entity
3494	with demonstrated expertise in health care quality data and
3495	systems analysis, health information management, systems
3496	thinking and analysis, human factors analysis, and
3497	identification of latent and active errors.
3498	2. Include procedures for ensuring its confidentiality,
3499	timeliness, and independence.
3500	(c) Foster the development of a statewide electronic
3501	infrastructure, which would be implemented in phases over a
3502	multiyear period, that is designed to improve patient care and
3503	the delivery and quality of health care services by health care
3504	facilities and practitioners. The electronic infrastructure
3505	would be a secure platform for communication and the sharing of
3506	clinical and other data, such as business data, among providers
3507	and between patients and providers. The electronic
3508	infrastructure would include a core electronic medical record.
3509	Health care providers would have access to individual electronic
3510	medical records, subject to the consent of the individual. The
3511	right, if any, of other entities, including health insurers and
3512	researchers, to access the records would need further
3513	examination and evaluation by the agency.
3514	(d) Foster the use of computerized physician medication
3515	ordering systems by hospitals that do not have such systems and
3516	develop protocols for these systems.
3517	(e) Implement paragraphs (c) and (d) as a demonstration
3518	project for Medicaid recipients.
3519	(f) Identify best practices and share this information
3520	with health care providers.
3521	(g) Engage in other activities that improve health care
3522	quality, improve the diagnosis and treatment of diseases and
3523	medical conditions, increase the efficiency of the delivery of
3524	health care services, increase administrative efficiency, and
3525	increase access to quality health care services.
3526	(3) The agency shall also consider ways in which a Patient
3527	Safety Authority would be able to facilitate the development of
3528	no-fault demonstration projects as means to reduce and prevent
3529	medical errors and promote patient safety.
3530	(4) The agency shall seek information and advice from and
3531	consult with hospitals, physicians, other health care providers,
3532	attorneys, consumers, and individuals involved with and
3533	knowledgeable about patient safety and quality-of-care
3534	initiatives.
3535	(5) In evaluating the need for, and the operation of, a
3536	Patient Safety Authority, the agency shall determine the costs
3537	of implementing and administering an authority and suggest
3538	funding sources and mechanisms.
3539	(6) The agency shall complete its study and issue a report
3540	to the Speaker of the House of Representatives and the President
3541	of the Senate by February 1, 2004. In its report, the agency
3542	shall include specific findings, recommendations, and proposed
3543	legislation.
3544	Section 75. (1) The Medical Injury Nonjudicial
3545	Compensation Study Commission is created. The commission shall
3546	be composed of 12 voting members, four of whom are appointed by
3547	the Governor, four of whom are appointed by the President of the
3548	Senate, and four of whom are appointed by the Speaker of the
3549	House of Representatives. In addition, the Attorney General or
3550	his or her designee shall serve as an ex officio nonvoting
3551	member of the commission. The Governor's appointments must
3552	include at least one appointment from each of the following
3553	groups: physicians, hospitals, attorneys, and consumers. The
3554	President of the Senate and the Speaker of the House of
3555	Representatives shall each select one appointee from each of the
3556	groups listed and, in addition, shall appoint two members from
3557	their respective chambers of the Legislature to serve on the
3558	commission as ex officio nonvoting members. Appointments under
3559	this subsection shall be made within 60 days after this act
3560	becomes law, and the first meeting of the commission shall be
3561	held no later than 60 days thereafter. The chair of the
3562	commission shall be elected from the voting members by the
3563	majority of the membership at its first meeting. Any vacancy
3564	occurring in the membership of the commission shall be filled in
3565	the same manner as the original appointment.
3566	(2) Each voting member of the commission is entitled to
3567	one vote, and action of the commission requires a two-thirds
3568	vote of the members present. However, action of the commission
3569	may be taken only at a meeting at which a majority of the voting
3570	members of the commission are present.
3571	(3)(a) The commission shall recommend statutory changes
3572	needed to accomplish the following:
3573	1. Implementation of the "provider-based early payment"
3574	model for medical injury compensation recommended by the
3575	Institute of Medicine of the National Academy of Sciences and
3576	contained in the report entitled "Fostering Rapid Advances in
3577	Health Care."
3578	2. Implementation of the "statewide administrative
3579	resolution" model for medical injury compensation recommended by
3580	the Institute of Medicine of the National Academy of Sciences
3581	and contained in the report entitled "Fostering Rapid Advances
3582	in Health Care."
3583	3. Implementation of a nonjudicial compensation model for
3584	medical injuries in a teaching hospital or public hospital
3585	covered under sovereign immunity.
3586	4. Implementation of any other nonjudicial compensation
3587	model for medical injuries that the commission deems
3588	appropriate.
3589	(b) Contingency fees for attorneys should be eliminated
3590	from the claims bill process in these models, if the claims bill
3591	process is used.
3592	(c) In determining what changes in law are needed to
3593	implement nonjudicial compensation programs for medical injuries
3594	that result from avoidable errors, the following should be
3595	considered:
3596	1. How avoidable errors would be determined.
3597	2. How patients would be immediately compensated for
3598	injuries according to schedules that calculate economic and
3599	noneconomic damages.
3600	3. How the tort system should be revised.
3601	4. How exceptions to the nonjudicial system would be
3602	created to give persons access to the tort system for injuries
3603	due to intentional harm or due to reckless disregard for
3604	practicing within the standard of care.
3605	5. How individuals and organizations who implement a
3606	nonjudicial program would be protected from legal liability.
3607	6. How health insurers and others who pay the costs
3608	incurred by patients who have suffered compensable injuries
3609	would be protected from lawsuits.
3610	7. How appropriate communications such as mediated
3611	discussions between health care providers and patients following
3612	the occurrence of an avoidable injury would be protected so that
3613	they do not increase a provider's financial liability or legal
3614	liability.
3615	8. How oversight mechanisms would be established to ensure
3616	that avoidable injuries are detected and disclosed.
3617	9. How other necessary elements of a nonjudicial
3618	compensation program would be implemented.
3619	(4) The commission may hold public hearings as it deems
3620	necessary.
3621	(5) The commission shall, by February 1, 2004, provide to
3622	the President of the Senate, the Speaker of the House of
3623	Representatives, and the Governor an interim report of its
3624	recommendations. A final written report shall be provided to the
3625	same officers by June 30, 2004, with findings and
3626	recommendations for all the issues identified in subsection (3),
3627	including recommendations for any needed statutory changes.
3628	(6) The commission may establish and appoint any necessary
3629	technical advisory committees. Commission members, and the
3630	members of any technical advisory committees that are appointed,
3631	shall not receive remuneration for their services, but are
3632	entitled to be reimbursed by the Department of Legal Affairs for
3633	travel or per diem expenses in accordance with chapter 112,
3634	Florida Statutes. Public officers and employees shall be
3635	reimbursed by their respective agencies in accordance with
3636	chapter 112, Florida Statutes.
3637	(7) The commission may select an executive director, who
3638	shall report to the commission and serve at its pleasure, and
3639	may hire staff needed to accomplish the goals of this section.
3640	The commission may hire consultants for the analysis of specific
3641	issues.
3642	(8) Each commission member may receive per diem and
3643	expenses for travel, as provided in s. 112.061, Florida
3644	Statutes, while carrying out official business of the
3645	commission.
3646	(9) The commission shall continue in existence until its
3647	objectives are achieved, but not later than June 30, 2004.
3648	Section 76. If any provision of this act or the
3649	application thereof to any person or circumstance is held
3650	invalid, the invalidity does not affect other provisions or
3651	applications of the act which can be given effect without the
3652	invalid provision or application, and to this end the provisions
3653	of this act are declared severable.
3654	Section 77. If any law amended by this act was also
3655	amended by a law enacted at the 2003 Regular Session of the
3656	Legislature or at the 2003 Special Session A of the Legislature,
3657	such laws shall be construed as if they had been enacted at the
3658	same session of the Legislature, and full effect shall be given
3659	to each if possible.
3660	Section 78. This act shall take effect upon becoming a law
3661	and, except as otherwise provided in this act, shall apply to
3662	all actions filed after the effective date of the act.