HB 1739CS

CHAMBER ACTION



1The Health & Families Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to medical malpractice; amending s.
7456.041, F.S.; requiring the Department of Health to
8verify certain information submitted by a person who
9applies for initial licensure, or renewal of licensure, as
10a physician; providing physician profile requirements;
11creating s. 456.50, F.S.; providing definitions;
12prohibiting the Board of Medicine or the Board of
13Osteopathic Medicine from licensing or continuing to
14license medical doctors found to have committed repeated
15medical malpractice; providing criteria for certain
16findings; authorizing the board to verify certain
17licensees' medical malpractice history; authorizing the
18board to require certain persons to provide a copy of a
19trial record resulting in a medical malpractice judgment
20involving certain incidents; extending a time period for
21granting or denying certain licensure applications;
22amending ss. 458.331 and 459.015, F.S.; revising grounds
23for denial of a license or for disciplinary action;
24prohibiting the Board of Medicine or the Board of
25Osteopathic Medicine from licensing or reinstating the
26license of medical doctors found to have committed
27repeated medical malpractice; providing an effective date.
28
29Be It Enacted by the Legislature of the State of Florida:
30
31     Section 1.  Paragraph (b) of subsection (1) of section
32456.041, Florida Statutes, is redesignated as paragraph (c) and
33a new paragraph (b) is added to said subsection, to read:
34     456.041  Practitioner profile; creation.--
35     (1)
36     (b)  Beginning July 1, 2005, the department shall verify
37the information submitted by the applicant under s. 456.039
38concerning disciplinary history and medical malpractice claims
39at the time of initial licensure and license renewal using the
40National Practitioner Data Bank. The physician profiles shall
41reflect the disciplinary action and medical malpractice claims
42as reported by the National Practitioner Data Bank.
43     Section 2.  Section 456.50, Florida Statutes, is created to
44read:
45     456.50  Repeated medical malpractice.--
46     (1)  For purposes of s. 26, Art. X of the State
47Constitution and ss. 458.331(1)(t), (4), and (5) and
48459.015(1)(x), (4), and (5):
49     (a)  "Board" means the Board of Medicine, in the case of a
50physician licensed pursuant to chapter 458, or the Board of
51Osteopathic Medicine, in the case of an osteopathic physician
52licensed pursuant to chapter 459.
53     (b)  "Final administrative agency decision" means a final
54order of the licensing board following a hearing as provided in
55s. 120.57(1) or (2) or s. 120.574 finding that the licensee has
56violated s. 458.331(1)(t) or s. 459.015(1)(x).
57     (c)  "Found to have committed" means the malpractice has
58been found in a final judgment of a court of law, final
59administrative agency decision, or decision of binding
60arbitration.
61     (d)  "Incident" means the wrongful act or occurrence from
62which the medical malpractice arises, regardless of the number
63of claimants or findings. For purposes of this section:
64     1.  A single act of medical malpractice, regardless of the
65number of claimants, shall count as only one incident.
66     2.  Multiple findings of medical malpractice arising from
67the same wrongful act or series of wrongful acts associated with
68the treatment of the same patient shall count as only one
69incident.
70     (e)  "Level of care, skill, and treatment recognized in
71general law related to health care licensure" means the standard
72of care specified in s. 766.102.
73     (f)  "Medical doctor" means a physician licensed pursuant
74to chapter 458 or chapter 459.
75     (g)  "Medical malpractice" means the failure to practice
76medicine in accordance with the level of care, skill, and
77treatment recognized in general law related to health care
78licensure. Only for the purpose of finding repeated medical
79malpractice pursuant to this section, any similar wrongful act,
80neglect, or default, committed in another state or country,
81which if committed in this state would have been considered
82medical malpractice as defined in this paragraph, shall be
83considered medical malpractice if the standard of care and
84burden of proof applied in the other state or country equaled or
85exceeded that used in this state.
86     (h)  "Repeated medical malpractice" means three or more
87incidents of medical malpractice found to have been committed by
88a medical doctor. Only an incident occurring on or after
89November 2, 2004, shall be considered an incident for purposes
90of finding repeated medical malpractice under this section.
91     (2)  For purposes of implementing s. 26, Art. X of the
92State Constitution, the board shall not license or continue to
93license a medical doctor found to have committed repeated
94medical malpractice, the finding of which was based upon clear
95and convincing evidence. In order to rely on an incident of
96medical malpractice to determine whether a license must be
97denied or revoked under this section, if the facts supporting
98the finding of the incident of medical malpractice were
99determined on a standard less stringent than clear and
100convincing evidence, the board shall review the record of the
101case and determine whether the finding would be supported under
102the standard of clear and convincing evidence. Section 456.073
103applies to such proceedings. The board may verify on a biennial
104basis an out-of-state licensee's medical malpractice history
105using federal, state, or other databases. The board may require
106licensees and applicants for licensure to provide a copy of the
107record of the trial resulting in any medical malpractice
108judgment, which may be required to be in an electronic format,
109involving an incident that occurred on or after November 2,
1102004. For purposes of implementing s. 26, Art. X of the State
111Constitution, the 90-day requirement for granting or denying a
112complete allopathic or osteopathic licensure application in s.
113120.60(1) is extended to 180 days.
114     Section 3.  Paragraph (t) of subsection (1) and subsections
115(4), (5), and (10) of section 458.331, Florida Statutes, are
116amended to read:
117     458.331  Grounds for disciplinary action; action by the
118board and department.--
119     (1)  The following acts constitute grounds for denial of a
120license or disciplinary action, as specified in s. 456.072(2):
121     (t)  Notwithstanding s. 456.072(2) but as specified in s.
122456.50(2):
123     1.  Committing medical malpractice as defined in s. 456.50
124Gross or repeated malpractice or the failure to practice
125medicine with that level of care, skill, and treatment which is
126recognized by a reasonably prudent similar physician as being
127acceptable under similar conditions and circumstances. The board
128shall give great weight to the provisions of s. 766.102 when
129enforcing this paragraph. As used in this paragraph, "repeated
130malpractice" includes, but is not limited to, three or more
131claims for Medical malpractice within the previous 5-year period
132resulting in indemnities being paid in excess of $50,000 each to
133the claimant in a judgment or settlement and which incidents
134involved negligent conduct by the physician. As used in this
135paragraph, "gross malpractice" or "the failure to practice
136medicine with that level of care, skill, and treatment which is
137recognized by a reasonably prudent similar physician as being
138acceptable under similar conditions and circumstances," shall
139not be construed so as to require more than one instance, event,
140or act.
141     2.  Committing gross medical malpractice.
142     3.  Committing repeated medical malpractice as defined in
143s. 456.50. No person found by the board to have committed
144repeated medical malpractice based on s. 456.50 shall be
145licensed or continue to be licensed by this state to provide
146health care services as a medical doctor in this state.
147
148Nothing in this paragraph shall be construed to require that a
149physician be incompetent to practice medicine in order to be
150disciplined pursuant to this paragraph. A recommended order by
151an administrative law judge or a final order of the board
152finding a violation under this paragraph shall specify whether
153the licensee was found to have committed "gross medical
154malpractice," "repeated medical malpractice," or "medical
155malpractice," "failure to practice medicine with that level of
156care, skill, and treatment which is recognized as being
157acceptable under similar conditions and circumstances," or any
158combination thereof, and any publication by the board must so
159specify.
160     (4)  The board shall not reinstate the license of a
161physician, or cause a license to be issued to a person it deems
162or has deemed unqualified, until such time as it is satisfied
163that he or she has complied with all the terms and conditions
164set forth in the final order and that such person is capable of
165safely engaging in the practice of medicine. However, the board
166may not issue a license to, or reinstate the license of, any
167medical doctor found by the board to have committed repeated
168medical malpractice based on s. 456.50, regardless of the extent
169to which the licensee or prospective licensee has complied with
170all terms and conditions set forth in the final order and is
171capable of safely engaging in the practice of medicine.
172     (5)  The board shall by rule establish guidelines for the
173disposition of disciplinary cases involving specific types of
174violations. Such guidelines may include minimum and maximum
175fines, periods of supervision or probation, or conditions of
176probation or reissuance of a license. "Gross medical
177malpractice," "repeated medical malpractice," and "medical
178malpractice" "failure to practice medicine with that level of
179care, skill, and treatment which is recognized as being
180acceptable under similar circumstances" under paragraph (1)(t)
181subsection (10) shall each be considered distinct types of
182violations requiring specific individual guidelines.
183     (10)  A recommended order by an administrative law judge,
184or a final order of the board finding a violation under this
185section shall specify whether the licensee was found to have
186committed "gross malpractice," "repeated malpractice," or
187"failure to practice medicine with that level of care, skill,
188and treatment which is recognized as being acceptable under
189similar conditions and circumstances" or any combination
190thereof, and any publication by the board shall so specify.
191     Section 4.  Paragraph (x) of subsection (1) and subsections
192(4) and (5) of section 459.015, Florida Statutes, are amended to
193read:
194     459.015  Grounds for disciplinary action; action by the
195board and department.--
196     (1)  The following acts constitute grounds for denial of a
197license or disciplinary action, as specified in s. 456.072(2):
198     (x)  Notwithstanding s. 456.072(2) but as specified in s.
199456.50(2):
200     1.  Committing medical Gross or repeated malpractice as
201defined in s. 456.50 or the failure to practice osteopathic
202medicine with that level of care, skill, and treatment which is
203recognized by a reasonably prudent similar osteopathic physician
204as being acceptable under similar conditions and circumstances.
205The board shall give great weight to the provisions of s.
206766.102 when enforcing this paragraph. As used in this
207paragraph, "repeated malpractice" includes, but is not limited
208to, three or more claims for Medical malpractice within the
209previous 5-year period resulting in indemnities being paid in
210excess of $50,000 each to the claimant in a judgment or
211settlement and which incidents involved negligent conduct by the
212osteopathic physician. As used in this paragraph, "gross
213malpractice" or "the failure to practice osteopathic medicine
214with that level of care, skill, and treatment which is
215recognized by a reasonably prudent similar osteopathic physician
216as being acceptable under similar conditions and circumstances"
217shall not be construed so as to require more than one instance,
218event, or act.
219     2.  Committing gross medical malpractice.
220     3.  Committing repeated medical malpractice as defined in
221s. 456.50. No person found by the board to have committed
222repeated medical malpractice based on s. 456.50 shall be
223licensed or continue to be licensed by this state to provide
224health care services as a medical doctor in this state.
225
226Nothing in this paragraph shall be construed to require that an
227osteopathic physician be incompetent to practice osteopathic
228medicine in order to be disciplined pursuant to this paragraph.
229A recommended order by an administrative law judge or a final
230order of the board finding a violation under this paragraph
231shall specify whether the licensee was found to have committed
232"gross medical malpractice," "repeated medical malpractice," or
233"medical malpractice," "failure to practice osteopathic medicine
234with that level of care, skill, and treatment which is
235recognized as being acceptable under similar conditions and
236circumstances," or any combination thereof, and any publication
237by the board shall so specify.
238     (4)  The board shall not reinstate the license or
239certificate of an osteopathic physician, or cause a license or
240certificate to be issued to a person it has deemed unqualified,
241until such time as it is satisfied that he or she has complied
242with all the terms and conditions set forth in the final order
243and that such person is capable of safely engaging in the
244practice of osteopathic medicine. However, the board may not
245issue a license to, or reinstate the license of, any medical
246doctor found by the board to have committed repeated medical
247malpractice based on s. 456.50, regardless of the extent to
248which the licensee or prospective licensee has complied with all
249terms and conditions set forth in the final order and is capable
250of safely engaging in the practice of osteopathic medicine.
251     (5)  The board shall, by rule, establish comprehensive
252guidelines for the disposition of disciplinary cases involving
253specific types of violations. Such guidelines shall establish
254offenses and circumstances for which revocation will be presumed
255to be appropriate, as well as offenses and circumstances for
256which suspension for particular periods of time will be presumed
257to be appropriate. The guidelines shall also establish minimum
258and maximum fines, periods of supervision or probation, or
259conditions of probation and conditions for reissuance of a
260license with respect to particular circumstances and offenses.
261"Gross medical malpractice," "repeated medical malpractice," and
262"medical malpractice" "failure to practice osteopathic medicine
263with that level of care, skill, and treatment which is
264recognized as being acceptable under similar conditions and
265circumstances" under paragraph (1)(x) shall each be considered
266distinct types of violations requiring specific individual
267guidelines.
268     Section 5.  This act shall take effect upon becoming a law.


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