HB 1739

1	A bill to be entitled
2	An act relating to medical malpractice; creating s.
3	456.50, F.S.; providing definitions; prohibiting the Board
4	of Medicine or the Board of Osteopathic Medicine from
5	licensing or continuing to license medical doctors found
6	to have committed repeated medical malpractice; providing
7	criteria for certain findings; requiring the board to
8	establish certain review procedures by rule; providing a
9	limitation and requirements; authorizing the board to
10	verify certain licensee's medical malpractice history;
11	amending ss. 458.331 and 459.015, F.S.; revising grounds
12	for denial of a license or for disciplinary action;
13	prohibiting the Board of Medicine or the Board of
14	Osteopathic Medicine from licensing or reinstating the
15	license of medical doctors found to have committed
16	repeated medical malpractice; providing an effective date.
17
18	Be It Enacted by the Legislature of the State of Florida:
19
20	Section 1.  Section 456.50, Florida Statutes, is created to
21	read:
22	456.50  Repeated medical malpractice.--
23	(1)  For purposes of s. 26, Art. X of the State
24	Constitution and ss. 458.331(1)(t), (4), and (5) and
25	459.015(1)(x), (4), and (5):
26	(a)  "Board" means the Board of Medicine, in the case of a
27	physician licensed pursuant to chapter 458, or the Board of
28	Osteopathic Medicine, in the case of an osteopathic physician
29	licensed pursuant to chapter 459.
30	(b)  "Final administrative agency decision" means a final
31	order of the licensing board following a hearing as provided in
32	s. 120.57(1) or (2) or s. 120.574 finding that the licensee has
33	violated s. 458.331(1)(t) or s. 459.015(1)(x).
34	(c)  "Found to have committed" means the malpractice has
35	been found in a final judgment of a court of law, final
36	administrative agency decision, or decision of binding
37	arbitration.
38	(d)  "Incident" means the wrongful act or occurrence from
39	which the medical malpractice arises, regardless of the number
40	of claimants or findings. For purposes of this section:
41	1.  A single act of medical malpractice, regardless of the
42	number of claimants, shall count as only one incident.
43	2.  Multiple findings of medical malpractice arising from
44	the same wrongful act or series of wrongful acts associated with
45	the treatment of the same patient shall count as only one
46	incident.
47	(e)  "Level of care, skill, and treatment recognized in
48	general law related to health care licensure" means the standard
49	of care specified in s. 766.102.
50	(f)  "Medical doctor" means a physician licensed pursuant
51	to chapter 458 or chapter 459.
52	(g)  "Medical malpractice" means the failure to practice
53	medicine in accordance with the level of care, skill, and
54	treatment recognized in general law related to health care
55	licensure. Only for the purpose of finding repeated medical
56	malpractice pursuant to this section, any similar wrongful act,
57	neglect, or default, committed in another state or country,
58	which if committed in this state would have been considered
59	medical malpractice as defined in this paragraph, shall be
60	considered medical malpractice if the standard of care and
61	burden of proof applied in the other state or country equaled or
62	exceeded that used in this state.
63	(h)  "Repeated medical malpractice" means three or more
64	incidents of medical malpractice within a 10-year period which
65	required payment in excess of $50,000 for each incident to the
66	claimant in a judgment or decision of binding arbitration or
67	findings of medical malpractice in a final administrative agency
68	decision, or  combination thereof. Only an incident occurring on
69	or after November 3, 2004, shall be considered an incident for
70	purposes of finding repeated medical malpractice under this
71	section.
72	(2)  For purposes of implementing s. 26, Art. X of the
73	State Constitution, the board shall not license or continue to
74	license a medical doctor found to have committed repeated
75	medical malpractice, the finding of which was based upon clear
76	and convincing evidence. In order to rely on an incident of
77	medical malpractice to determine whether a license must be
78	denied or revoked under this section, if the facts supporting
79	the finding of the incident of medical malpractice were
80	determined on a standard less stringent than clear and
81	convincing evidence, the board shall review the record of the
82	case and determine that the finding would be supported under the
83	clear and convincing standard. The board shall establish
84	procedures by rule for conducting a review of the record and
85	determining whether or not the finding of repeated medical
86	malpractice is supported under the clear and convincing
87	standard. These procedures shall not require a de novo hearing
88	or trial but may permit the submission of briefs and oral
89	arguments. In addition, the rule shall provide for review by a
90	panel of physicians licensed pursuant to this chapter, establish
91	qualifications for physicians serving on the panel, and set
92	forth the timeframe for completing the review. The board may
93	verify on a biennial basis an out-of-state licensee's medical
94	malpractice history using federal, state, or other databases.
95	Section 2.  Paragraph (t) of subsection (1) and subsections
96	(4), (5), and (10) of section 458.331, Florida Statutes, are
97	amended to read:
98	458.331  Grounds for disciplinary action; action by the
99	board and department.--
100	(1)  The following acts constitute grounds for denial of a
101	license or disciplinary action, as specified in s. 456.072(2):
102	(t)  Notwithstanding s. 456.072(2) but as specified in s.
103	456.50(2):
104	1.  Committing medical malpractice as defined in s. 456.50
105	Gross or repeated malpractice or the failure to practice
106	medicine with that level of care, skill, and treatment which is
107	recognized by a reasonably prudent similar physician as being
108	acceptable under similar conditions and circumstances. The board
109	shall give great weight to the provisions of s. 766.102 when
110	enforcing this paragraph. As used in this paragraph, "repeated
111	malpractice" includes, but is not limited to, three or more
112	claims for Medical malpractice within the previous 5-year period
113	resulting in indemnities being paid in excess of $50,000 each to
114	the claimant in a judgment or settlement and which incidents
115	involved negligent conduct by the physician. As used in this
116	paragraph, "gross malpractice" or "the failure to practice
117	medicine with that level of care, skill, and treatment which is
118	recognized by a reasonably prudent similar physician as being
119	acceptable under similar conditions and circumstances," shall
120	not be construed so as to require more than one instance, event,
121	or act.
122	2.  Committing gross medical malpractice.
123	3.  Committing repeated medical malpractice as defined in
124	s. 456.50. No person found by the board to have committed
125	repeated medical malpractice based on s. 456.50 shall be
126	licensed or continue to be licensed by this state to provide
127	health care services as a medical doctor in this state.
128
129	Nothing in this paragraph shall be construed to require that a
130	physician be incompetent to practice medicine in order to be
131	disciplined pursuant to this paragraph. A recommended order by
132	an administrative law judge or a final order of the board
133	finding a violation under this paragraph shall specify whether
134	the licensee was found to have committed "gross medical
135	malpractice," "repeated medical malpractice," or "medical
136	malpractice," "failure to practice medicine with that level of
137	care, skill, and treatment which is recognized as being
138	acceptable under similar conditions and circumstances," or any
139	combination thereof, and any publication by the board must so
140	specify.
141	(4)  The board shall not reinstate the license of a
142	physician, or cause a license to be issued to a person it deems
143	or has deemed unqualified, until such time as it is satisfied
144	that he or she has complied with all the terms and conditions
145	set forth in the final order and that such person is capable of
146	safely engaging in the practice of medicine. However, the board
147	may not issue a license to, or reinstate the license of, any
148	medical doctor found by the board to have committed repeated
149	medical malpractice based on s. 456.50, regardless of the extent
150	to which the licensee or prospective licensee has complied with
151	all terms and conditions set forth in the final order and is
152	capable of safely engaging in the practice of medicine.
153	(5)  The board shall by rule establish guidelines for the
154	disposition of disciplinary cases involving specific types of
155	violations. Such guidelines may include minimum and maximum
156	fines, periods of supervision or probation, or conditions of
157	probation or reissuance of a license. "Gross medical
158	malpractice," "repeated medical malpractice," and "medical
159	malpractice" "failure to practice medicine with that level of
160	care, skill, and treatment which is recognized as being
161	acceptable under similar circumstances" under paragraph (1)(t)
162	subsection (10) shall each be considered distinct types of
163	violations requiring specific individual guidelines.
164	(10)  A recommended order by an administrative law judge,
165	or a final order of the board finding a violation under this
166	section shall specify whether the licensee was found to have
167	committed "gross malpractice," "repeated malpractice," or
168	"failure to practice medicine with that level of care, skill,
169	and treatment which is recognized as being acceptable under
170	similar conditions and circumstances" or any combination
171	thereof, and any publication by the board shall so specify.
172	Section 3.  Paragraph (x) of subsection (1) and subsections
173	(4) and (5) of section 459.015, Florida Statutes, are amended to
174	read:
175	459.015  Grounds for disciplinary action; action by the
176	board and department.--
177	(1)  The following acts constitute grounds for denial of a
178	license or disciplinary action, as specified in s. 456.072(2):
179	(x)  Notwithstanding s. 456.072(2) but as specified in s.
180	456.50(2):
181	1.  Committing medical Gross or repeated malpractice as
182	defined in s. 456.50 or the failure to practice osteopathic
183	medicine with that level of care, skill, and treatment which is
184	recognized by a reasonably prudent similar osteopathic physician
185	as being acceptable under similar conditions and circumstances.
186	The board shall give great weight to the provisions of s.
187	766.102 when enforcing this paragraph. As used in this
188	paragraph, "repeated malpractice" includes, but is not limited
189	to, three or more claims for Medical malpractice within the
190	previous 5-year period resulting in indemnities being paid in
191	excess of $50,000 each to the claimant in a judgment or
192	settlement and which incidents involved negligent conduct by the
193	osteopathic physician. As used in this paragraph, "gross
194	malpractice" or "the failure to practice osteopathic medicine
195	with that level of care, skill, and treatment which is
196	recognized by a reasonably prudent similar osteopathic physician
197	as being acceptable under similar conditions and circumstances"
198	shall not be construed so as to require more than one instance,
199	event, or act.
200	2.  Committing gross medical malpractice.
201	3.  Committing repeated medical malpractice as defined in
202	s. 456.50. No person found by the board to have committed
203	repeated medical malpractice based on s. 456.50 shall be
204	licensed or continue to be licensed by this state to provide
205	health care services as a medical doctor in this state.
206
207	Nothing in this paragraph shall be construed to require that an
208	osteopathic physician be incompetent to practice osteopathic
209	medicine in order to be disciplined pursuant to this paragraph.
210	A recommended order by an administrative law judge or a final
211	order of the board finding a violation under this paragraph
212	shall specify whether the licensee was found to have committed
213	"gross medical malpractice," "repeated medical malpractice," or
214	"medical malpractice," "failure to practice osteopathic medicine
215	with that level of care, skill, and treatment which is
216	recognized as being acceptable under similar conditions and
217	circumstances," or any combination thereof, and any publication
218	by the board shall so specify.
219	(4)  The board shall not reinstate the license or
220	certificate of an osteopathic physician, or cause a license or
221	certificate to be issued to a person it has deemed unqualified,
222	until such time as it is satisfied that he or she has complied
223	with all the terms and conditions set forth in the final order
224	and that such person is capable of safely engaging in the
225	practice of osteopathic medicine. However, the board may not
226	issue a license to, or reinstate the license of, any medical
227	doctor found by the board to have committed repeated medical
228	malpractice based on s. 456.50, regardless of the extent to
229	which the licensee or prospective licensee has complied with all
230	terms and conditions set forth in the final order and is capable
231	of safely engaging in the practice of osteopathic medicine.
232	(5)  The board shall, by rule, establish comprehensive
233	guidelines for the disposition of disciplinary cases involving
234	specific types of violations. Such guidelines shall establish
235	offenses and circumstances for which revocation will be presumed
236	to be appropriate, as well as offenses and circumstances for
237	which suspension for particular periods of time will be presumed
238	to be appropriate. The guidelines shall also establish minimum
239	and maximum fines, periods of supervision or probation, or
240	conditions of probation and conditions for reissuance of a
241	license with respect to particular circumstances and offenses.
242	"Gross medical malpractice," "repeated medical malpractice," and
243	"medical malpractice" "failure to practice osteopathic medicine
244	with that level of care, skill, and treatment which is
245	recognized as being acceptable under similar conditions and
246	circumstances" under paragraph (1)(x) shall each be considered
247	distinct types of violations requiring specific individual
248	guidelines.
249	Section 4.  This act shall take effect upon becoming a law.

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