Senate Bill sb0940c1
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    Florida Senate - 2005                            CS for SB 940
    By the Committee on Health Care; and Senator Peaden
    587-1683C-05
  1                      A bill to be entitled
  2         An act relating to repeated medical
  3         malpractice; amending s. 456.041, F.S.;
  4         requiring the Department of Health to verify
  5         information submitted by a person who applies
  6         for initial licensure, or renewal of licensure,
  7         as a physician; creating s. 456.50, F.S.;
  8         defining terms; prescribing acts that
  9         constitute repeated medical malpractice;
10         providing for review of acts and determination
11         by the Board of Medicine and the Board of
12         Osteopathic Medicine; authorizing the Board of
13         Medicine and the Board of Osteopathic Medicine
14         to require licensees and applicants for
15         licensure to provide a copy of the record of
16         the trial of any medical malpractice judgment
17         involving an incident occurring on or after a
18         specified date; extending the 90-day
19         requirement for granting or denying a complete
20         allopathic or osteopathic licensure application
21         to 180 days; amending s. 458.331, F.S.;
22         redefining acts of medical malpractice, gross
23         medical malpractice, or repeated medical
24         malpractice which constitute grounds for
25         disciplinary action against a physician;
26         amending s. 459.015, F.S.; redefining acts of
27         medical malpractice, gross medical malpractice,
28         or repeated medical malpractice which
29         constitute grounds for disciplinary action
30         against an osteopathic physician; providing an
31         effective date.
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    Florida Senate - 2005                            CS for SB 940
    587-1683C-05
 1  Be It Enacted by the Legislature of the State of Florida:
 2  
 3         Section 1.  Subsection (1) of section 456.041, Florida
 4  Statutes, is amended to read:
 5         456.041  Practitioner profile; creation.--
 6         (1)(a)  The Department of Health shall compile the
 7  information submitted pursuant to s. 456.039 into a
 8  practitioner profile of the applicant submitting the
 9  information, except that the Department of Health shall
10  develop a format to compile uniformly any information
11  submitted under s. 456.039(4)(b). Beginning July 1, 2001, the
12  Department of Health may compile the information submitted
13  pursuant to s. 456.0391 into a practitioner profile of the
14  applicant submitting the information.
15         (b)  Beginning July 1, 2005, the department shall
16  verify the information submitted by the applicant under s.
17  456.039 concerning disciplinary history and medical
18  malpractice claims at the time of initial licensure and
19  license renewal using the National Practitioner Data Bank. The
20  physician profiles shall reflect the disciplinary action and
21  medical malpractice claims as reported by the National
22  Practitioner Data Bank.
23         (c)(b)  Within 30 calendar days after receiving an
24  update of information required for the practitioner's profile,
25  the department shall update the practitioner's profile in
26  accordance with the requirements of subsection (7).
27         Section 2.  Section 456.50, Florida Statutes, is
28  created to read:
29         456.50 Repeated medical malpractice.--
30  
31  
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    Florida Senate - 2005                            CS for SB 940
    587-1683C-05
 1         (1)  For purposes of s. 26, Art. X of the State
 2  Constitution and ss. 458.331(1)(t), (4), and (5) and
 3  459.015(1)(x), (4), and (5):
 4         (a)  "Board" means the Board of Medicine, in the case
 5  of a physician licensed pursuant to chapter 458, or the Board
 6  of Osteopathic Medicine, in the case of an osteopathic
 7  physician licensed pursuant to chapter 459.
 8         (b)  "Final administrative agency decision" means a
 9  final order of the licensing board following a hearing as
10  provided in s. 120.57(1) or (2) or s. 120.574 finding that the
11  licensee has violated s. 458.331(1)(t) or s. 459.015(1)(x).
12         (c)  "Found to have committed" means the malpractice
13  has been found in a final judgment of a court of law, final
14  administrative agency decision, or decision of binding
15  arbitration.
16         (d)  "Incident" means the wrongful act or occurrence
17  from which the medical malpractice arises, regardless of the
18  number of claimants or findings. For purposes of this section:
19         1.  A single act of medical malpractice, regardless of
20  the number of claimants, shall count as only one incident.
21         2.  Multiple findings of medical malpractice arising
22  from the same wrongful act or series of wrongful acts
23  associated with the treatment of the same patient shall count
24  as only one incident.
25         (e)  "Level of care, skill, and treatment recognized in
26  general law related to health care licensure" means the
27  standard of care specified in s. 766.102.
28         (f)  "Medical doctor" means a physician licensed
29  pursuant to chapter 458 or chapter 459.
30         (g)  "Medical malpractice" means the failure to
31  practice medicine in accordance with the level of care, skill,
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    Florida Senate - 2005                            CS for SB 940
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 1  and treatment recognized in general law related to health care
 2  licensure. Only for the purpose of finding repeated medical
 3  malpractice pursuant to this section, any similar wrongful
 4  act, neglect, or default committed in another state or country
 5  which, if committed in this state, would have been considered
 6  medical malpractice as defined in this paragraph, shall be
 7  considered medical malpractice if the standard of care and
 8  burden of proof applied in the other state or country equaled
 9  or exceeded that used in this state.
10         (h)  "Repeated medical malpractice" means three or more
11  incidents of medical malpractice found to have been committed
12  by a medical doctor. Only an incident occurring on or after
13  November 2, 2004, shall be considered an incident for purposes
14  of finding repeated medical malpractice under this section.
15         (2)  For purposes of implementing s. 26, Art. X of the
16  State Constitution, the board shall not license or continue to
17  license a medical doctor found to have committed repeated
18  medical malpractice, the finding of which was based upon clear
19  and convincing evidence. In order to rely on an incident of
20  medical malpractice to determine whether a license must be
21  denied or revoked under this section, if the facts supporting
22  the finding of the incident of medical malpractice were
23  determined on a standard less stringent than clear and
24  convincing evidence, the board shall review the record of the
25  case and determine whether the finding would be supported
26  under a standard of clear and convincing evidence. Section
27  456.073 applies. The board may verify on a biennial basis an
28  out-of-state licensee's medical malpractice history using
29  federal, state, or other databases. The board may require
30  licensees and applicants for licensure to provide a copy of
31  the record of the trial of any medical malpractice judgment,
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    Florida Senate - 2005                            CS for SB 940
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 1  which may be required to be in an electronic format, involving
 2  an incident that occurred on or after November 2, 2004. For
 3  purposes of implementing s. 26, Art. X of the State
 4  Constitution, the 90-day requirement for granting or denying a
 5  complete allopathic or osteopathic licensure application in s.
 6  120.60(1) is extended to 180 days.
 7         Section 3.  Paragraph (t) of subsection (1) and
 8  subsections (4), (5), and (10) of section 458.331, Florida
 9  Statutes, are amended to read:
10         458.331  Grounds for disciplinary action; action by the
11  board and department.--
12         (1)  The following acts constitute grounds for denial
13  of a license or disciplinary action, as specified in s.
14  456.072(2):
15         (t)  Notwithstanding s. 456.072(2) but as specified in
16  s. 456.50(2):
17         1.  Committing medical malpractice as defined in s.
18  456.50 Gross or repeated malpractice or the failure to
19  practice medicine with that level of care, skill, and
20  treatment which is recognized by a reasonably prudent similar
21  physician as being acceptable under similar conditions and
22  circumstances. The board shall give great weight to the
23  provisions of s. 766.102 when enforcing this paragraph. As
24  used in this paragraph, "repeated malpractice" includes, but
25  is not limited to, three or more claims for Medical
26  malpractice within the previous 5-year period resulting in
27  indemnities being paid in excess of $50,000 each to the
28  claimant in a judgment or settlement and which incidents
29  involved negligent conduct by the physician. As used in this
30  paragraph, "gross malpractice" or "the failure to practice
31  medicine with that level of care, skill, and treatment which
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    Florida Senate - 2005                            CS for SB 940
    587-1683C-05
 1  is recognized by a reasonably prudent similar physician as
 2  being acceptable under similar conditions and circumstances,"
 3  shall not be construed so as to require more than one
 4  instance, event, or act.
 5         2.  Committing gross medical malpractice.
 6         3.  Committing repeated medical malpractice as defined
 7  in s. 456.50. A person found by the board to have committed
 8  repeated medical malpractice based on s. 456.50 may not be
 9  licensed or continue to be licensed by this state to provide
10  health care services as a medical doctor in this state.
11  
12  Nothing in this paragraph shall be construed to require that a
13  physician be incompetent to practice medicine in order to be
14  disciplined pursuant to this paragraph. A recommended order by
15  an administrative law judge or a final order of the board
16  finding a violation under this paragraph shall specify whether
17  the licensee was found to have committed "gross medical
18  malpractice," "repeated medical malpractice," or "medical
19  malpractice," "failure to practice medicine with that level of
20  care, skill, and treatment which is recognized as being
21  acceptable under similar conditions and circumstances," or any
22  combination thereof, and any publication by the board must so
23  specify.
24         (4)  The board shall not reinstate the license of a
25  physician, or cause a license to be issued to a person it
26  deems or has deemed unqualified, until such time as it is
27  satisfied that he or she has complied with all the terms and
28  conditions set forth in the final order and that such person
29  is capable of safely engaging in the practice of medicine.
30  However, the board may not issue a license to, or reinstate
31  the license of, any medical doctor found by the board to have
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    Florida Senate - 2005                            CS for SB 940
    587-1683C-05
 1  committed repeated medical malpractice based on s. 456.50,
 2  regardless of the extent to which the licensee or prospective
 3  licensee has complied with all terms and conditions set forth
 4  in the final order and is capable of safely engaging in the
 5  practice of medicine.
 6         (5)  The board shall by rule establish guidelines for
 7  the disposition of disciplinary cases involving specific types
 8  of violations. Such guidelines may include minimum and maximum
 9  fines, periods of supervision or probation, or conditions of
10  probation or reissuance of a license. "Gross medical
11  malpractice," "repeated medical malpractice," and "medical
12  malpractice," "failure to practice medicine with that level of
13  care, skill, and treatment which is recognized as being
14  acceptable under similar circumstances" under paragraph (1)(t)
15  subsection (10) shall each be considered distinct types of
16  violations requiring specific individual guidelines.
17         (10)  A recommended order by an administrative law
18  judge, or a final order of the board finding a violation under
19  this section shall specify whether the licensee was found to
20  have committed "gross malpractice," "repeated malpractice," or
21  "failure to practice medicine with that level of care, skill,
22  and treatment which is recognized as being acceptable under
23  similar conditions and circumstances" or any combination
24  thereof, and any publication by the board shall so specify.
25         Section 4.  Paragraph (x) of subsection (1) and
26  subsections (4) and (5) of section 459.015, Florida Statutes,
27  are amended to read:
28         459.015  Grounds for disciplinary action; action by the
29  board and department.--
30  
31  
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    Florida Senate - 2005                            CS for SB 940
    587-1683C-05
 1         (1)  The following acts constitute grounds for denial
 2  of a license or disciplinary action, as specified in s.
 3  456.072(2):
 4         (x)  Notwithstanding s. 456.072(2) but as specified in
 5  s. 456.50(2):
 6         1.  Committing medical Gross or repeated malpractice as
 7  defined in s. 456.50 or the failure to practice osteopathic
 8  medicine with that level of care, skill, and treatment which
 9  is recognized by a reasonably prudent similar osteopathic
10  physician as being acceptable under similar conditions and
11  circumstances. The board shall give great weight to the
12  provisions of s. 766.102 when enforcing this paragraph. As
13  used in this paragraph, "repeated malpractice" includes, but
14  is not limited to, three or more claims for Medical
15  malpractice within the previous 5-year period resulting in
16  indemnities being paid in excess of $50,000 each to the
17  claimant in a judgment or settlement and which incidents
18  involved negligent conduct by the osteopathic physician. As
19  used in this paragraph, "gross malpractice" or "the failure to
20  practice osteopathic medicine with that level of care, skill,
21  and treatment which is recognized by a reasonably prudent
22  similar osteopathic physician as being acceptable under
23  similar conditions and circumstances" shall not be construed
24  so as to require more than one instance, event, or act.
25         2.  Committing gross medical malpractice.
26         3.  Committing repeated medical malpractice as defined
27  in s. 456.50. A person found by the board to have committed
28  repeated medical malpractice based on s. 456.50 may not be
29  licensed or continue to be licensed by this state to provide
30  health care services as a medical doctor in this state.
31  
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    Florida Senate - 2005                            CS for SB 940
    587-1683C-05
 1  Nothing in this paragraph shall be construed to require that
 2  an osteopathic physician be incompetent to practice
 3  osteopathic medicine in order to be disciplined pursuant to
 4  this paragraph.  A recommended order by an administrative law
 5  judge or a final order of the board finding a violation under
 6  this paragraph shall specify whether the licensee was found to
 7  have committed "gross medical malpractice," "repeated medical
 8  malpractice," or "medical malpractice," "failure to practice
 9  osteopathic medicine with that level of care, skill, and
10  treatment which is recognized as being acceptable under
11  similar conditions and circumstances," or any combination
12  thereof, and any publication by the board shall so specify.
13         (4)  The board shall not reinstate the license or
14  certificate of an osteopathic physician, or cause a license or
15  certificate to be issued to a person it has deemed
16  unqualified, until such time as it is satisfied that he or she
17  has complied with all the terms and conditions set forth in
18  the final order and that such person is capable of safely
19  engaging in the practice of osteopathic medicine. However, the
20  board may not issue a license to, or reinstate the license of,
21  any medical doctor found by the board to have committed
22  repeated medical malpractice based on s. 456.50, regardless of
23  the extent to which the licensee or prospective licensee has
24  complied with all terms and conditions set forth in the final
25  order and is capable of safely engaging in the practice of
26  osteopathic medicine.
27         (5)  The board shall, by rule, establish comprehensive
28  guidelines for the disposition of disciplinary cases involving
29  specific types of violations.  Such guidelines shall establish
30  offenses and circumstances for which revocation will be
31  presumed to be appropriate, as well as offenses and
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    Florida Senate - 2005                            CS for SB 940
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 1  circumstances for which suspension for particular periods of
 2  time will be presumed to be appropriate. The guidelines shall
 3  also establish minimum and maximum fines, periods of
 4  supervision or probation, or conditions of probation and
 5  conditions for reissuance of a license with respect to
 6  particular circumstances and offenses. "Gross medical
 7  malpractice," "repeated medical malpractice," and "medical
 8  malpractice," "failure to practice osteopathic medicine with
 9  that level of care, skill, and treatment which is recognized
10  as being acceptable under similar conditions and
11  circumstances" under paragraph (1)(x) shall each be considered
12  distinct types of violations requiring specific individual
13  guidelines.
14         Section 5.  This act shall take effect upon becoming a
15  law.
16  
17          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
18                         Senate Bill 940
19                                 
20  The Committee Substitute for Senate Bill 940 implements s. 26,
    Article X of the State Constitution, and applies this
21  provision to allopathic and osteopathic physicians. Only
    incidents that occurred on or after November 2, 2004, may be
22  considered for purposes of the prohibition on licensure for
    repeated medical malpractice. The Board of Medicine and the
23  Board of Osteopathic Medicine, when revoking a license, or
    granting or denying a license must review the facts supporting
24  an incident of medical malpractice using a clear and
    convincing standard of evidence. The time for the boards to
25  review physician licensure applications is extended from 90 to
    180 days. Acts of medical malpractice, gross medical
26  malpractice, or repeated malpractice, as grounds for which an
    allopathic or osteopathic physician may be disciplined, are
27  redefined to implement s. 26, Art. X of the State
    Constitution. Incidents is defined to include a single act of
28  medical malpractice, regardless of the number of claimants.
    Multiple findings of medical malpractice arising from the same
29  act or acts associated with the treatment of the same patient
    must count as only one incident. The Department of Health must
30  verify physicians' disciplinary history and medical
    malpractice claims at initial licensure and licensure renewal
31  using the National Practitioner Data Bank.
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