HB 1331

1	A bill to be entitled
2	An act relating to mammography; providing legislative
3	findings and intent; creating the Carole Green Breast
4	Cancer Steering Committee; providing for membership,
5	duties, and reports; amending s. 456.077, F.S.;
6	authorizing the Board of Medicine and the Board of
7	Osteopathic Medicine to issue citations and to require
8	additional education in certain circumstances; amending s.
9	766.118, F.S.; providing for limitation on noneconomic
10	damages for negligence of practitioners and
11	nonpractitioner defendants providing mammography services;
12	creating s. 766.119, F.S.; providing for burden of proof
13	and clarifying use of subsequent mammograms as evidence in
14	negligence actions; creating a medical review panel pilot
15	project for claims involving mammography services;
16	providing for membership and duties; requiring a report to
17	the Legislature; providing for severability; providing
18	applicability; providing an effective date.
19
20	WHEREAS, breast cancer is the second leading cause of
21	cancer deaths in women, and
22	WHEREAS, breast cancer affects all of us through our
23	spouses, mothers, daughters, sisters, aunts, nieces, friends,
24	and neighbors, and
25	WHEREAS, there are three main tools available to detect
26	breast cancer: breast examinations by a health care
27	practitioner, breast self-examinations, and screening
28	mammograms, and
29	WHEREAS, although mammography is an imperfect screening
30	test, it is still the best medical test available to detect
31	breast cancer, and
32	WHEREAS, early detection of breast cancer decreases
33	mortality by 30 percent, and
34	WHEREAS, screening mammograms need to be widely available
35	to all women at risk regardless of geographic location, race,
36	type of or nonexistence of insurance, or socioeconomic status,
37	and
38	WHEREAS, the Workgroup on Mammography Accessibility created
39	by the Legislature under Senate Bill 2306 in the 2004 Regular
40	Session found that population growth combined with a growing
41	shortage of interpreting radiologists will have an adverse
42	effect on the future availability of mammography services, and
43	WHEREAS, radiologists are reluctant to provide screening
44	mammography services because of the high cost of obtaining
45	professional liability insurance in comparison to the low
46	reimbursements received and the fear of a medical malpractice
47	lawsuit being brought against a radiologist who is not able to
48	catch every single instance of a cancerous or precancerous
49	condition, and
50	WHEREAS, in 2004, the Legislature directed the Office of
51	Program Policy Analysis and Government Accountability to study
52	issues relating to mammography services in the state, and
53	WHEREAS, the Office of Program Policy Analysis and
54	Government Accountability found that one of the factors limiting
55	access to mammography services in the state is the fear of
56	medical malpractice lawsuits which is causing some radiologists
57	to limit the number of mammograms they interpret, and
58	WHEREAS, the Department of Health conducted a survey and
59	found that 17 percent of the facilities surveyed had appointment
60	wait times exceeding 28 days for screening mammograms, and
61	WHEREAS, the Workgroup on Mammography Accessibility found
62	that mammography facilities in the state have high-quality
63	personnel and equipment and a high level of compliance with
64	safety and other standards of care, as demonstrated by the
65	results of inspections by the United States Food and Drug
66	Administration, and
67	WHEREAS, the Workgroup on Mammography Accessibility found
68	that national data show that most defendants in alleged medical
69	malpractice claims involving breast cancer are radiologists and
70	that only claims for neurologically impaired newborns are more
71	expensive than breast cancer in terms of indemnity dollars, and
72	WHEREAS, the Legislature has previously recognized that two
73	other medical specialists, obstetricians and emergency room
74	physicians, have such a high risk of liability claims that
75	access to these services is in jeopardy without statutory
76	protection limiting the damages available to patients and their
77	families, and
78	WHEREAS, funds from professional liability insurance are
79	not an appropriate or adequate substitute for health insurance,
80	disability insurance, or life insurance, and
81	WHEREAS, breast cancer is not caused by physicians, and
82	WHEREAS, the Legislature must take action to protect the
83	advancements made in the diagnosis, treatment, and awareness of
84	breast cancer through the tireless efforts of groups such as the
85	Susan B. Komen Foundation, the American Cancer Society, the
86	American College of Radiology, and others, and
87	WHEREAS, the Workgroup on Mammography Accessibility made
88	eight recommendations to the Legislature to ensure that
89	mammography will continue to be available to women in Florida,
90	that there are enough radiologists available to interpret
91	mammograms, that the fear of lawsuits or high medical liability
92	insurance premiums does not deter physicians from entering the
93	field of radiology and the interpretation of mammograms, and
94	that utilization of mammography is increased in medically
95	underserved populations, NOW, THEREFORE,
96
97	Be It Enacted by the Legislature of the State of Florida:
98
99	Section 1.  Legislative findings.--
100	(1)  The Legislature finds that it is of the utmost public
101	importance that quality mammography services and other
102	diagnostic tools remain available to detect and treat breast
103	cancer.
104	(2)  The Legislature finds that the current litigious
105	environment and low reimbursement rates threaten the
106	availability of mammography services for all women in the state.
107	(3)  The Legislature finds that the rapidly growing
108	population and the changing demographics of the state make it
109	imperative that medical students continue to choose this state
110	as the place they will receive their medical educations,
111	complete their residency requirements, and practice radiology.
112	(4)  The Legislature finds that radiologists providing
113	mammography services are in a unique class of physicians who
114	have little or no direct patient contact and generally have no
115	established physician-patient relationship.
116	(5)  The Legislature finds that the State of Florida is
117	among the states with the highest medical malpractice insurance
118	premiums in the nation.
119	(6)  The Legislature finds that the cost of medical
120	malpractice insurance has increased dramatically during the past
121	decade and both the increase and the current cost are
122	substantially higher than the national average.
123	(7)  The Legislature finds that the increase in medical
124	malpractice liability insurance rates is forcing physicians,
125	including radiologists, to practice medicine without
126	professional liability insurance, to leave the state, to not
127	perform high-risk procedures such as mammograms, or to retire
128	early from the practice of medicine.
129	(8)  The Legislature finds that there are certain elements
130	of damages presently recoverable that have no monetary value,
131	except on a purely arbitrary basis, while other elements of
132	damages are either easily measured on a monetary basis or
133	reflect ultimate monetary loss.
134	(9)  The Legislature finds that the 2003 Governor's Select
135	Task Force on Healthcare Professional Liability Insurance has
136	established that a medical malpractice crisis exists in the
137	state which can be alleviated by the adoption of comprehensive
138	legislatively enacted reforms.
139	(10)  The Legislature finds that making high-quality health
140	care, including mammography services, available to the citizens
141	of this state is an overwhelming public necessity.
142	(11)  The Legislature finds that ensuring that physicians
143	continue to practice radiology in the state is an overwhelming
144	public necessity.
145	(12)  The Legislature finds that ensuring the availability
146	of affordable professional liability insurance for physicians is
147	an overwhelming public necessity.
148	(13)  The Legislature finds that, based upon the findings
149	and recommendations of the Workgroup on Mammography
150	Accessibility, the findings and recommendations of the
151	Governor's Select Task Force on Healthcare Professional
152	Liability Insurance, the findings and recommendations of the
153	Office of Program Policy Analysis and Government Accountability,
154	the findings and recommendations of various study groups
155	throughout the nation, and the experience of other states, the
156	overwhelming public necessity of making quality health care,
157	including mammography services, available to the citizens of the
158	state, ensuring that physicians continue to practice radiology
159	in the state, and ensuring that those physicians have the
160	opportunity to purchase affordable professional liability
161	insurance cannot be met unless limitations on medical
162	malpractice lawsuits, including a cap on noneconomic damages,
163	are imposed.
164	(14)  The Legislature finds that the high cost of medical
165	malpractice claims can be substantially alleviated by imposing a
166	limitation on noneconomic damages in medical malpractice actions
167	relating to mammography services.
168	(15)  The Legislature further finds that there is no
169	alternative measure for alleviating the high cost of medical
170	malpractice claims without imposing even greater limits upon the
171	ability of persons to recover damages for medical malpractice.
172	(16)  The Legislature finds that the provisions of this act
173	are naturally and logically connected to each other and to the
174	purpose of making quality mammography services available to the
175	women of the state.
176	(17)  The Legislature finds that each provision of this act
177	is necessary to alleviate the crisis relating to mammography
178	accessibility in the state.
179	Section 2.  The Carole Green Breast Cancer Steering
180	Committee is created to promote and enhance the use of annual
181	mammograms, with an emphasis on medically underserved women. The
182	committee shall work to implement the recommendations of the
183	Workgroup on Mammography Accessibility, including facilitating
184	comprehensive strategic planning, ensuring statewide
185	coordination of community-based care, and enhancing the
186	reimbursement, utilization, access, and quality of mammography
187	services in the state. The committee shall include the Secretary
188	of Health or a designee to serve as the chair, the Secretary of
189	the Agency for Health Care Administration or a designee, a
190	representative of the Office of Insurance Regulation, four
191	persons appointed by the Governor, four persons appointed by the
192	President of the Senate, one of whom must be a current state
193	senator, and four persons appointed by the Speaker of the House
194	of Representatives, one of whom must be a current state
195	representative. The Department of Health shall staff the
196	committee. The Governor's appointees and the Legislature's
197	appointees who are not members of the Legislature must have a
198	background in mammography by either practicing or teaching, or
199	both, as a physician in the field of mammography, as an insurer
200	of mammography health care providers, or as an attorney with
201	experience in medical malpractice cases. The steering committee
202	shall provide an annual report to the Governor, the President of
203	the Senate, and the Speaker of the House of Representatives that
204	recommends necessary legislative and executive branch action
205	relating to mammography services.
206	Section 3.  Subsection (7) is added to section 456.077,
207	Florida Statutes, to read:
208	456.077  Authority to issue citations.--
209	(7)  The Board of Medicine and the Board of Osteopathic
210	Medicine may issue a citation in lieu of disciplinary action for
211	the first allegation brought against a physician alleging a
212	failure to diagnose breast cancer through the interpretation of
213	a mammogram. The board, in issuing the citation, may impose up
214	to 10 additional hours of continuing education in mammography
215	interpretation.
216	Section 4.  Subsections (8) and (9) are added to section
217	766.118, Florida Statutes, to read:
218	766.118  Determination of noneconomic damages.--
219	(8)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
220	PRACTITIONERS PROVIDING MAMMOGRAPHY SERVICES.--Notwithstanding
221	subsections (2) and (3), with respect to a cause of action for
222	personal injury or wrongful death arising from the medical
223	negligence of practitioners who provide mammography services to
224	persons with whom the practitioner does not have a then-existing
225	health care patient-practitioner relationship for that medical
226	condition:
227	(a)  Regardless of the number of such practitioner
228	defendants, noneconomic damages shall not exceed $150,000 per
229	claimant.
230	(b)  Notwithstanding paragraph (a), the total noneconomic
231	damages recoverable by all claimants from all such practitioners
232	shall not exceed $300,000 in the aggregate.
233
234	The limitation provided by this subsection applies only to
235	noneconomic damages awarded as a result of any act or omission
236	relating to mammography interpretation.
237	(9)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
238	NONPRACTITIONER DEFENDANTS PROVIDING MAMMOGRAPHY
239	SERVICES.--Notwithstanding subsections (2) and (3), with respect
240	to a cause of action for personal injury or wrongful death
241	arising from medical negligence of defendants other than
242	practitioners who provide mammography services to persons with
243	whom the practitioner does not have a then-existing health care
244	patient-practitioner relationship for that medical
245	condition:
246	(a)  Regardless of the number of such nonpractitioner
247	defendants, noneconomic damages shall not exceed $750,000 per
248	claimant.
249	(b)  Notwithstanding paragraph (a), the total noneconomic
250	damages recoverable by all claimants from all such
251	nonpractitioner defendants shall not exceed $1.5 million in the
252	aggregate.
253	(c)  Nonpractitioner defendants may receive a full setoff
254	for payments made by practitioner defendants.
255
256	The limitation provided by this subsection applies only to
257	noneconomic damages awarded as a result of any act or omission
258	relating to mammography interpretation.
259	Section 5.  Medical review panels for claims involving
260	mammography services; pilot project; reports.--
261	(1)  The Department of Health, in consultation with the
262	Board of Medicine and the American College of Radiology, shall
263	create a medical review panel pilot project as part of the
264	presuit process in medical malpractice litigation involving the
265	failure to diagnose breast cancer through the interpretation of
266	a mammogram. The panel shall consist of three physicians
267	licensed pursuant to chapter 458 or chapter 459 who are board
268	certified in radiology and who have experience in the past 3
269	years in reading and interpreting mammograms. The medical review
270	panel shall review all medical malpractice cases involving
271	mammography during the presuit process and make judgments on the
272	merits of the case based on established standards of care. The
273	panel's report may be used as admissible evidence at trial and
274	in disciplinary proceedings.
275	(2)  The Department of Health shall report to the
276	Legislature on whether medical review panels or similar panels
277	should be created for use during the presuit process for other
278	medical services.
279	(3)  In submitting its report, the department should
280	identify at a minimum:
281	(a)  The number of medical malpractice claims submitted to
282	the panel during the time period the panel is in existence.
283	(b)  The percentage of claims that were settled while the
284	panel is in existence and the percentage of claims that were
285	settled in the 3 years prior to the establishment of the medical
286	review panel pilot project.
287	(c)  If the department finds that medical review panels or
288	a similar structure should be created for additional types of
289	claims, it shall include draft legislation to implement its
290	recommendations in its report.
291	(4)  The department shall submit its report to the
292	Governor, the Speaker of the House of Representatives, and the
293	President of the Senate no later than December 31, 2006.
294	Section 6.  Section 766.119, Florida Statutes, is created
295	to read:
296	766.119  Actions relating to mammograms.--In a civil action
297	brought pursuant to this chapter against a radiologist licensed
298	in this state pursuant to chapter 458 or chapter 459 for any
299	action or omission arising from the performance of his or her
300	duties relating to mammograms, the burden of proof shall be
301	clear and convincing evidence. Furthermore, a subsequent
302	mammogram may not be used as the sole evidence relied upon by an
303	expert witness or a finder of fact in determining the failure to
304	diagnose breast cancer when the subsequent mammogram was
305	performed more than 6 months after the mammogram that is alleged
306	to have been incorrectly interpreted.
307	Section 7.  If any provision of this act or its application
308	to any person or circumstance is held invalid, the invalidity
309	does not affect other provisions or applications of the act
310	which can be given effect without the invalid provision or
311	application, and to this end the provisions of this act are
312	severable.
313	Section 8.  It is the intent of the Legislature to apply
314	the provisions of this act to prior medical incidents, to the
315	extent such application is not prohibited by the State
316	Constitution or the Federal Constitution, except that the
317	changes to chapter 766, Florida Statutes, shall apply only to
318	any medical incident for which a notice of intent to initiate
319	litigation is mailed on or after the effective date of this act.
320	Section 9.  This act shall take effect July 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.