CS/HB 1497

1	A bill to be entitled
2	An act relating to abortion; amending s. 390.0111, F.S.;
3	clarifying the requirement that third trimester abortions
4	be performed in a hospital; providing for disciplinary
5	action for violation of specified provisions; requiring an
6	ultrasound be performed on any woman obtaining an
7	abortion; specifying who must perform an ultrasound;
8	providing that the ultrasound must be reviewed with the
9	patient prior to the woman giving informed consent;
10	specifying who must review the ultrasound with the
11	patient; providing that the woman must certify in writing
12	that she declined to review the ultrasound and did so of
13	her own free will and without undue influence; providing
14	an exemption to view the ultrasound for women who are the
15	victims of rape, incest, domestic violence, or human
16	trafficking or for women who have a serious medical
17	condition necessitating the abortion; revising
18	requirements for written materials; providing ban on
19	physicians seeking waivers of patients' rights to file
20	complaints with regulatory bodies or litigate causes of
21	action; requiring a 24-hour waiting period before a
22	physician may perform or induce an abortion on an adult or
23	on certain minor patients; providing for exception in the
24	case of a medical emergency; creating s. 390.01112, F.S.;
25	providing for a women's reproductive bill of rights;
26	requiring abortion clinics and physician abortion
27	providers to adopt a public statement of patients' rights
28	and to treat patients in accordance with that statement;
29	providing for required provisions in the statement to
30	patients; requiring clinics and physician abortion
31	providers to provide the information in their statement
32	orally and in writing to patients or their court-appointed
33	guardians; requiring that the statements be provided to
34	staff members; requiring staff training; providing for
35	disciplinary action for violation of patients' bill of
36	rights; providing for immunity to persons filing
37	complaints or testifying in proceedings, subject to
38	certain conditions; creating s. 390.01113, F.S.; creating
39	a private civil action against clinics, nurses, or
40	physicians or violation of a patients' rights; providing
41	persons who may file a cause of action; providing venue;
42	providing for actual and punitive damages; providing for
43	recovery of attorney's fees under certain circumstances;
44	providing criteria for recovering attorney's fees;
45	providing that a cause of action under this section is not
46	a claim for medical malpractice; providing basis for
47	punitive damages and exemptions from other provisions of
48	law governing punitive damages; amending s. 390.01114,
49	F.S.; revising provisions relating to parental notice of
50	abortion; providing exceptions; providing for a cause of
51	action under certain circumstances for parents who do not
52	receive notice; providing for damages for cause of action;
53	requiring appointment of a guardian ad litem for a minor
54	petitioning for a waiver of the notice requirements;
55	specifying factors to be considered in determining whether
56	a minor is sufficiently mature to waive the notice
57	requirements; revising provisions relating to
58	confidentiality of hearings;  creating s. 390.01117, F.S.;
59	providing for a cause of action in negligence for any
60	injury or death a patient suffers as a result of an
61	abortion; providing for who may bring a cause of action;
62	providing for survival and wrongful death damages if the
63	patient dies; providing for venue; providing for actual
64	and punitive damages; providing for attorney's fees to
65	prevailing party under certain circumstances; providing
66	that remedies are in addition to any other remedies
67	provided for in law; providing criteria for award of
68	attorney's fees; providing burden of proof; providing that
69	a cause of action is not strict liability; providing for
70	legal duties and standards of care for clinics,
71	physicians, or nurses; providing that cause of action
72	under this section is not a medical malpractice claim;
73	providing for exceptions from certain laws; providing
74	standard for award of punitive damages; providing for
75	exceptions from certain laws for punitive damage awards;
76	creating s. 390.01118, F.S.; providing for a statute of
77	limitations and repose for specified causes of action;
78	providing for statute of limitations periods of actions
79	that accrue prior to the effective date of s. 390.01118,
80	F.S.; creating s. 390.01119, F.S.; providing for a
81	misdemeanor of the second degree for fraudulently
82	altering, defacing, or falsifying medical records related
83	to an abortion or for causing any of these offenses;
84	providing for professional licensure actions for the same
85	violations; amending s. 390.012, F.S.; providing that
86	agency rules promulgated shall prohibit the performance of
87	abortions in the third trimester other than in a hospital;
88	requiring that the agency rules provide that a clinic or
89	abortion provider cannot request a patient to waive her
90	rights to sue or file a complaint with a disciplinary
91	body; deleting references to conform; requiring
92	ultrasounds for all patients; requiring that live
93	ultrasound images be reviewed and explained to the
94	patient; providing that the patient may decline to review
95	ultrasound images; providing that any language of the act
96	that could be construed as infringing upon a court's
97	powers shall be construed as a request for rule change;
98	providing for severability; providing an effective date.
99
100	Be It Enacted by the Legislature of the State of Florida:
101
102	Section 1.  Subsections (1) and (3) of section 390.0111,
103	Florida Statutes, are amended, and subsection (12) is added to
104	that section, to read:
105	390.0111  Termination of pregnancies.--
106	(1)  TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.--No
107	termination of pregnancy shall be performed on any human being
108	in the third trimester of pregnancy unless:
109	(a)  The abortion is performed in a hospital; and
110	(b)1.  Two physicians certify in writing to the fact that,
111	to a reasonable degree of medical probability, the termination
112	of pregnancy is necessary to save the life or preserve the
113	health of the pregnant woman; or
114	2.(b)  The physician certifies in writing to the medical
115	necessity for legitimate emergency medical procedures for
116	termination of pregnancy in the third trimester, and another
117	physician is not available for consultation.
118	(c)  Violation of this subsection by a physician
119	constitutes grounds for disciplinary action under s. 458.331 or
120	s. 459.015.
121	(3)  CONSENTS REQUIRED.--A termination of pregnancy may not
122	be performed or induced except with the voluntary and informed
123	written consent of the pregnant woman or, in the case of a
124	mental incompetent, the voluntary and informed written consent
125	of her court-appointed guardian.
126	(a)  Except in the case of a medical emergency, consent to
127	a termination of pregnancy is voluntary and informed only if:
128	1.  The physician who is to perform the procedure, or the
129	referring physician, has, at a minimum, orally, in person,
130	informed the woman of:
131	a.  The nature and risks of undergoing or not undergoing
132	the proposed procedure that a reasonable patient would consider
133	material to making a knowing and willful decision of whether to
134	terminate a pregnancy.
135	b.  The probable gestational age of the fetus, verified by
136	an ultrasound, at the time the termination of pregnancy is to be
137	performed.
138	(I)  The ultrasound must be performed by the physician who
139	is to perform the abortion or person having documented evidence
140	that he or she has completed a course in the operation of
141	ultrasound equipment as prescribed by rule and who is working in
142	conjunction with the physician.
143	(II)  The person performing the ultrasound must allow the
144	woman to view the live ultrasound images and a physician, or a
145	registered nurse, licensed practical nurse, advanced registered
146	nurse practitioner, or physician assistant working in
147	conjunction with the physician, must contemporaneously review
148	and explain the live ultrasound images to the woman prior to the
149	woman giving informed consent to having an abortion procedure
150	performed. However, this sub-sub-subparagraph does not apply if,
151	at the time the woman schedules or arrives for her appointment
152	to obtain an abortion, a copy of a restraining order, police
153	report, medical record, or other court order or documentation is
154	presented that evidences that the woman is obtaining the
155	abortion because the woman is a victim of rape, incest, domestic
156	violence, or human trafficking or that the woman has been
157	diagnosed with a condition that, on the basis of a physician's
158	good faith clinical judgment, would create a serious risk of
159	substantial and irreversible impairment of a major bodily
160	function if the woman delayed terminating her pregnancy.
161	(III)  The woman has a right to decline to view the
162	ultrasound images after she is informed of her right to view
163	them. If the woman declines to view the ultrasound images, the
164	woman shall complete a form acknowledging that she was offered
165	an opportunity to view her ultrasound but that she rejected that
166	opportunity. The form must also indicate that the woman's
167	decision not to view the ultrasound was not based on any undue
168	influence from any third party to discourage her from viewing
169	the images and that she declined to view the images of her own
170	free will.
171	c.  The medical risks to the woman and fetus of carrying
172	the pregnancy to term.
173	2.  Printed materials prepared and provided by the
174	department have been provided to the pregnant woman, if she
175	chooses to view these materials, including:
176	a.  A description of the fetus, including a description of
177	the various stages of development.
178	b.  A list of entities agencies that offer alternatives to
179	terminating the pregnancy.
180	c.  Detailed information on the availability of medical
181	assistance benefits for prenatal care, childbirth, and neonatal
182	care.
183	3.  The woman acknowledges in writing, before the
184	termination of pregnancy, that the information required to be
185	provided under this subsection has been provided.
186
187	Nothing in this paragraph is intended to prohibit a physician
188	from providing any additional information which the physician
189	deems material to the woman's informed decision to terminate her
190	pregnancy.
191	(b)  In the event a medical emergency exists and a
192	physician cannot comply with the requirements for informed
193	consent, a physician may terminate a pregnancy if he or she has
194	obtained at least one corroborative medical opinion attesting to
195	the medical necessity for emergency medical procedures and to
196	the fact that to a reasonable degree of medical certainty the
197	continuation of the pregnancy would threaten the life of the
198	pregnant woman. In the event no second physician is available
199	for a corroborating opinion, the physician may proceed but shall
200	document reasons for the medical necessity in the patient's
201	medical records.
202	(c)  A physician shall not request a patient to waive her
203	ability to either file a complaint with any disciplinary body or
204	to litigate a cause of action based on the care received related
205	to an abortion or a violation of her rights.
206	(d)  Violation of this subsection by a physician
207	constitutes grounds for disciplinary action under s. 458.331 or
208	s. 459.015. Substantial compliance or reasonable belief that
209	complying with the requirements of informed consent would
210	threaten the life or health of the patient is a defense to any
211	action brought under this paragraph.
212	(12)  WAITING PERIOD FOR ABORTION.--No physician shall
213	perform or induce an abortion on a minor patient where notice is
214	not required pursuant to s. 390.01114(3)(b) or on an adult
215	patient unless, at least 24 hours prior thereto, a treating
216	physician has conferred with the patient, or her court-appointed
217	guardian if she is mentally incompetent, pursuant to the
218	requirements set forth in subsection (3). If a medical emergency
219	as defined in s. 390.01114(2)(d) exists, then this subsection
220	shall not apply.
221	Section 2.  Section 390.01112, Florida Statutes, is created
222	to read:
223	390.01112  Women's reproductive bill of rights.--
224	(1)  All abortion clinics and physician abortion providers
225	shall adopt and make public a statement of the rights of
226	patients seeking abortions and shall treat such patients in
227	accordance with the provisions of that statement. The statement
228	shall assure each patient all of the following:
229	(a)  That her abortion must be performed by a physician as
230	defined in s. 390.0111.
231	(b)  That she has the right to know the name, function, and
232	qualifications of each health care provider who is providing
233	medical services to the her. She may request this information
234	from the clinic or physician abortion provider.
235	(c)  That she is entitled to know the probable gestational
236	age of the fetus at the time the abortion is to be performed.
237	(d)  That if she is in her third trimester of pregnancy,
238	any abortion must be performed at a hospital.
239	(e)  That either the patient, or her court appointed
240	guardian if she is mentally incompetent, as set forth in s.
241	390.0111(3) is entitled to provide voluntary and informed,
242	written consent, unless a legal exception to obtaining informed
243	consent exists, before an abortion can be performed or induced.
244	(f)  That if she is a minor, her parent or legal guardian
245	as set forth in s. 390.01114(3) is entitled to receive actual or
246	constructive notice, unless a legal exception to compliance with
247	notice requirements exists, before an abortion can be performed
248	or induced.
249	(g)  That she is entitled to printed materials containing a
250	description of the fetus, a list of agencies that offer
251	alternatives to terminating the pregnancy, and detailed
252	information on the availability of medical assistance benefits
253	for prenatal care, childbirth, and neonatal care.
254	(h)  That she is entitled to be notified of the medical
255	risks of undergoing or not undergoing the proposed procedure
256	that a reasonable patient would consider material to making a
257	knowing and willful decision of whether to terminate the
258	pregnancy.
259	(i)  That she is entitled to notification of the medical
260	risks to her and her fetus of carrying the pregnancy to term.
261	(j)  That the clinic, physician, or physician's office is
262	not allowed to require her to waive her right to either file a
263	complaint with any disciplinary body or to litigate a cause of
264	action based on the care received related to an abortion or a
265	violation of her rights in order to obtain an abortion.
266	(k)  That she is entitled to have all medical records
267	pertaining to her abortion treatment made, protected, and
268	preserved by the physician abortion provider and clinic, and
269	that copies of her medical records shall be made available to
270	her, a representative of her estate, her court appointed
271	guardian if she is mentally incompetent, or her parent or legal
272	guardian pursuant to s. 390.01114(3)(d), or her legal
273	representative upon request.
274	(l)  That she is entitled to any and all adequate,
275	necessary, and appropriate health care related to the
276	performance or inducement of an abortion, including any and all
277	adequate, necessary, and appropriate post-abortion recovery and
278	medical care.
279	(m)  That, if she is in her second trimester of pregnancy,
280	she is entitled to receive care that meets all the quality and
281	safety standards set forth in this chapter, including all
282	requirements provided for in s. 390.012(3).
283	(n)  That she, or her court-appointed guardian if she is
284	mentally incompetent, has the right to refuse medication or
285	treatment and to be informed of the consequences of such
286	decisions. When the medication or treatment is refused, the
287	abortion clinic or physician must notify the patient or her
288	court-appointed guardian of the consequences of such decisions
289	and must document the decision in the patient's medical record.
290	The abortion clinic or physician must continue to provide other
291	services that the patient or her court-appointed guardian agrees
292	to in accordance with the patient's care or treatment needs.
293	(o)  That she is entitled to have privacy in her treatment
294	and care, and that, except as provided herein or elsewhere in
295	law, her medical records shall remain confidential pursuant to
296	all applicable state and federal laws.
297	(p)  That she has the right to a prompt and reasonable
298	response to any question she may have regarding her care or
299	treatment.
300	(q)  That she has the right to be treated courteously,
301	fairly, and with the fullest measure of dignity at all times and
302	upon all occasions.
303	(2)  All clinics and physician abortion providers shall
304	orally inform patients seeking abortions of their rights as set
305	forth herein and shall provide a copy of the statement as
306	provided in subsection (1) to each patient, or her court-
307	appointed guardian if the patient is mentally incompetent,
308	before performing an abortion. The statement shall itemize each
309	of the rights set forth in subsection (1) separately, including
310	each entitlement in s. 390.012 available to a patient obtaining
311	a second trimester abortion. The clinic or physician practicing
312	in a doctor's office shall provide a copy of the patients' bill
313	of reproductive rights to each staff member of the clinic or
314	physician's office. Each clinic or physician shall prepare a
315	written plan and provide appropriate staff training to implement
316	the provisions of this section. The written statement of rights
317	must include a statement that a patient may file a complaint
318	with the agency or department. The statement must be in
319	boldfaced, 14-point type and shall include the address and
320	telephone number of the agency or department.
321	(3)  Any violation of a patient's rights as set forth in
322	this section by a clinic shall constitute grounds for action by
323	the agency under the provisions of ss. 390.012, 408.813,
324	408.814, and 408.815. Any violation of a patient's rights as set
325	forth in this section by a physician shall constitute grounds
326	for disciplinary action under s. 458.331 or s. 459.015.
327	(4)  Any person who submits or reports a complaint
328	concerning a suspected violation of the patient's rights or
329	concerning services or conditions in a clinic or physician's
330	office or who testifies in any administrative or judicial
331	proceeding arising from such complaint shall have immunity from
332	any criminal or civil liability therefor, unless that person has
333	committed perjury in his or her testimony or acted in bad faith
334	or with malicious purpose or if the court finds that there was a
335	complete absence of a justiciable issue of either law or fact
336	raised by the losing party.
337	Section 3.  Section 390.01113, Florida Statutes, is created
338	to read:
339	390.01113  Civil action for violations of patients' rights;
340	relief.--
341	(1)  Any patient whose rights as specified in s. 390.01112
342	are violated has a cause of action against any physician, nurse,
343	or clinic for violation of her rights. The action may be brought
344	by the patient, her parent or legal guardian if the patient is a
345	minor, her court-appointed guardian if the patient is mentally
346	incompetent, or a personal representative of the estate of the
347	patient to enforce the right.
348	(2)  The action may be brought in any court of competent
349	jurisdiction to enforce such rights and to recover actual
350	damages, and punitive damages when malicious, wanton, or willful
351	disregard of the rights of others can be shown. Any plaintiff
352	who prevails in any such action for any amount is entitled to
353	recover reasonable attorney's fees, costs of the action, and
354	damages, unless the court finds that the plaintiff has acted in
355	bad faith or with malicious purpose or that there was a complete
356	absence of a justiciable issue of either law or fact. A
357	prevailing defendant is entitled to recover reasonable
358	attorney's fees under s. 57.105 only if the court determines
359	that the plaintiff's claim involved a complete absence of
360	justiciable law or fact. The remedies provided in this section
361	are in addition to other legal and administrative remedies
362	available to a patient, her estate, or to the agency or
363	department.
364	(3)  Attorney's fees shall be based on the following
365	criteria:
366	(a)  The time and labor required.
367	(b)  The novelty and difficulty of the questions.
368	(c)  The skill requisite to perform the legal service
369	properly.
370	(d)  The preclusions of other employment by the attorney
371	due to the acceptance of the case.
372	(e)  The customary fee.
373	(f)  Whether the fee is fixed or contingent.
374	(g)  The amount involved or the results obtained.
375	(h)  The experience, reputation, and ability of the
376	attorneys.
377	(i)  The costs expended to prosecute the claim.
378	(j)  The type of fee arrangement between the attorney and
379	the client.
380	(k)  Whether the relevant market requires a contingency fee
381	multiplier to obtain competent counsel.
382	(l)  Whether the attorney was able to mitigate the risk of
383	nonpayment in any way.
384	(4)  Any action brought under this section is not a claim
385	for medical malpractice, and chapter 766 does not apply. The
386	provisions of s. 768.21(8) do not apply to a claim alleging
387	death of the patient.
388	(5)  For purposes of this section, punitive damages may be
389	awarded for conduct that is willful, wanton, gross or flagrant,
390	reckless, or consciously indifferent to the rights of the
391	patient. Sections 768.72, 768.725, and 768.73 do not apply to
392	any civil action filed under this section.
393	Section 4.  Subsection (3) and paragraphs (a), (c), and (e)
394	of subsection (4) of section 390.01114, Florida Statutes, are
395	amended to read:
396	390.01114  Parental Notice of Abortion Act.--
397	(3)  NOTIFICATION REQUIRED.--
398	(a)1.a.  Actual notice shall be provided by the physician
399	performing or inducing the termination of pregnancy before the
400	performance or inducement of the termination of the pregnancy of
401	a minor. The notice may be given by a referring physician. The
402	physician who performs or induces the termination of pregnancy
403	must receive the written statement of the referring physician
404	certifying that the referring physician has given notice. If
405	actual notice is provided by telephone, the physician must
406	actually speak with the parent or guardian and must record in
407	the minor's medical file the name of the parent or guardian
408	provided notice, the phone number dialed, and the date and time
409	of the call.
410	b.  If actual notice is not possible after a reasonable
411	effort has been made, the physician performing or inducing the
412	termination of pregnancy or the referring physician must give
413	constructive notice. If constructive notice is given, the
414	physician must document that notice by placing copies of any
415	document related to the constructive notice, including, but not
416	limited to, a copy of the letter and the return receipt, in the
417	minor's medical file.
418	2.  Notice given under this subsection by the physician
419	performing or inducing the termination of pregnancy must include
420	the name and address of the facility providing the termination
421	of pregnancy and the name of the physician providing notice.
422	Notice given under this subsection by a referring physician must
423	include the name and address of the facility where he or she is
424	referring the minor and the name of the physician providing
425	notice. If actual notice is provided by telephone, the physician
426	must actually speak with the parent or guardian, and must record
427	in the minor's medical file the name of the parent or guardian
428	provided notice, the phone number dialed, and the date and time
429	of the call. If constructive notice is given, the physician must
430	document that notice by placing copies of any document related
431	to the constructive notice, including, but not limited to, a
432	copy of the letter and the return receipt, in the minor's
433	medical file.
434	(b)  Notice is not required if:
435	1.  In the physician's good faith clinical judgment, a
436	medical emergency exists and there is insufficient time for the
437	attending physician to comply with the notification
438	requirements. If a medical emergency exists, the physician may
439	proceed but must document reasons for the medical necessity in
440	the patient's medical records;
441	2.  Notice is waived in writing by the person who is
442	entitled to notice;
443	3.  Notice is waived by the minor who is or has been
444	married or has had the disability of nonage removed under s.
445	743.015 or a similar statute of another state;
446	4.  Notice is waived by the patient because the patient has
447	a minor child dependent on her; or
448	5.  Notice is waived under subsection (4).
449	(c)  Violation of this subsection by a physician
450	constitutes grounds for disciplinary action under s. 458.331 or
451	s. 459.015.
452	(d)  Any parent or legal guardian of a minor upon whom a
453	termination of pregnancy has been performed or induced who does
454	not receive actual or constructive notice from the physician
455	performing or inducing the termination of pregnancy, where an
456	exception to notice pursuant to paragraph (b) does not exist,
457	may, in a civil action, obtain appropriate relief, unless the
458	pregnancy resulted from the parent or legal guardian's criminal
459	conduct.
460	(e)  In a civil action under paragraph (d), appropriate
461	relief includes:
462	1.  Monetary damages for all injuries, psychological and
463	physical, occasioned by the violation of paragraph(a); and
464	2.  Damages equal to three times the cost of the abortion.
465	(f)  The damages provided for in paragraph (e) are in
466	addition to any other legal or administrative remedies that may
467	be available to the plaintiff or department.
468	(4)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--
469	(a)  A minor may petition any circuit court in a judicial
470	circuit within the jurisdiction of the District Court of Appeal
471	in which she resides for a waiver of the notice requirements of
472	subsection (3) and may participate in proceedings on her own
473	behalf. The petition may be filed under a pseudonym or through
474	the use of initials, as provided by court rule. The petition
475	must include a statement that the petitioner is pregnant and
476	notice has not been waived. The court shall advise the minor
477	that she has a right to court-appointed counsel and shall
478	provide her with counsel upon her request at no cost to the
479	minor. The court shall appoint a guardian ad litem for the
480	minor.
481	(c)  If the court finds, by clear and convincing evidence,
482	that the minor is sufficiently mature to decide whether to
483	terminate her pregnancy, the court shall issue an order
484	authorizing the minor to consent to the performance or
485	inducement of a termination of pregnancy without the
486	notification of a parent or guardian.
487	1.  Factors a court shall consider when determining whether
488	a child is sufficiently mature include, but are not limited to,
489	the following:
490	a.  Whether the minor is mature enough to make her abortion
491	decision, as evidenced by:
492	(I)  The minor's age.
493	(II)  The minor's credibility and demeanor as a witness.
494	(III)  The minor's ability to accept responsibility; and
495	b.  Whether the minor is well informed enough to make the
496	decision on her own, as evidenced by the minor's:
497	(I)  Overall intelligence.
498	(II)  Emotional development.
499	(III)  Ability to assess both the immediate and long range
500	consequences of her choices.
501	(IV)  Ability to understand and explain the medical
502	consequences of terminating her pregnancy and to apply that
503	understanding to her decision.
504	2.  The court should also take into consideration whether
505	there has been any undue influence by another on the minor's
506	decision to have an abortion.
507
508	If the court does not make the finding specified in this
509	paragraph or paragraph (d), it must dismiss the petition.
510	(e)  A court that conducts proceedings under this section
511	shall:
512	1.  Provide for a written transcript of all testimony and
513	proceedings.
514	2.  Issue a written final order containing all factual
515	findings and legal conclusions, including factual findings and
516	legal conclusions as to whether the petitioner is sufficiently
517	mature based on the factors set forth in subparagraph(c)1.
518	3.  Order that a confidential record be maintained as
519	required under s. 390.01116. All hearings under this section,
520	including appeals, shall remain confidential and closed to the
521	public, as provided by court rule A court that conducts
522	proceedings under this section shall provide for a written
523	transcript of all testimony and proceedings and issue written
524	and specific factual findings and legal conclusions supporting
525	its decision and shall order that a confidential record be
526	maintained, as required under s. 390.01116. At the hearing, the
527	court shall hear evidence relating to the emotional development,
528	maturity, intellect, and understanding of the minor, and all
529	other relevant evidence. All hearings under this section,
530	including appeals, shall remain confidential and closed to the
531	public, as provided by court rule.
532	Section 5.  Section 390.01117, Florida Statutes, is created
533	to read:
534	390.01117  Civil action for negligence; remedies.--
535	(1)  Any patient who suffers injury or death as a result of
536	an abortion shall have a cause of action for negligence. The
537	action may be brought by the patient, her parent or legal
538	guardian if the patient is a minor, her court-appointed guardian
539	if the patient is mentally incompetent, or a personal
540	representative of the estate of the patient regardless of the
541	cause of death to enforce the right. If the claim involves
542	negligence or injury to the patient that resulted in her death,
543	then the plaintiff shall be entitled to recover both survival
544	damages pursuant to s. 46.021 and wrongful death damages
545	pursuant to s. 768.21. If the action alleges a claim for injury
546	to the patient that did not cause her death, the personal
547	representative of the estate may recover damages for negligence
548	that caused injury to the patient.
549	(2)  The action may be brought in any court of competent
550	jurisdiction to enforce such rights and to recover actual
551	damages, and punitive damages when malicious, wanton, or willful
552	disregard of the rights of others can be shown. Any plaintiff
553	who prevails in any such action for any amount is entitled to
554	recover reasonable attorney's fees, costs of the action, and
555	damages, unless the court finds that the plaintiff has acted in
556	bad faith or with malicious purpose or that there was a complete
557	absence of a justiciable issue of either law or fact. A
558	prevailing defendant is entitled to recover reasonable
559	attorney's fees under s. 57.105 only if the court determines
560	that the plaintiff's claim involved a complete absence of
561	justiciable law or fact. The remedies provided in this section
562	are in addition to other legal and administrative remedies
563	available to a patient, her estate, or to the agency or
564	department.
565	(3)  Attorney's fees shall be based on the following
566	criteria:
567	(a)  The time and labor required.
568	(b)  The novelty and difficulty of the questions.
569	(c)  The skill requisite to perform the legal service
570	properly.
571	(d)  The preclusions of other employment by the attorney
572	due to the acceptance of the case.
573	(e)  The customary fee.
574	(f)  Whether the fee is fixed or contingent.
575	(g)  The amount involved or the results obtained.
576	(h)  The experience, reputation, and ability of the
577	attorneys.
578	(i)  The costs expended to prosecute the claim.
579	(j)  The type of fee arrangement between the attorney and
580	the client.
581	(k)  Whether the relevant market requires a contingency fee
582	multiplier to obtain competent counsel.
583	(l)  Whether the attorney was able to mitigate the risk of
584	nonpayment in any way.
585	(4)  In any claim brought under this section, the plaintiff
586	shall have the burden of proving by a preponderance of the
587	evidence, the following:
588	(a)  The defendant owed a duty to the patient.
589	(b)  The defendant breached the duty to the patient.
590	(c)  The breach of the duty was a legal cause of loss,
591	injury, death, or damage to the patient.
592	(d)  The patient sustained loss, injury, death, or damage
593	as a result of the breach.
594	(5)  Nothing in this section shall be interpreted to create
595	strict liability. Injury or death resulting to the patient shall
596	be evidence of negligence, but shall not be negligence per se.
597	(6)  In any claim brought under this section, a clinic,
598	person, or entity shall have a duty to exercise reasonable care.
599	Reasonable care is that degree of care which a reasonably
600	careful clinic, person, or entity would use under like
601	circumstances.
602	(7)  In any claim for negligence by a physician, such
603	physician shall have the duty to exercise care consistent with
604	the prevailing professional standard of care for physicians. The
605	prevailing professional standard of care for physicians shall be
606	that level of care, skill, and treatment which, in light of all
607	relevant surrounding circumstances, is recognized as acceptable
608	and appropriate by reasonably prudent similar physicians.
609	(8)  In any claim for negligence by a nurse licensed under
610	part I of chapter 464, such nurse shall have the duty to
611	exercise care consistent with the prevailing professional
612	standard of care for a nurse. The prevailing professional
613	standard of care for a nurse shall be that level of care, skill,
614	and treatment which, in light of all relevant surrounding
615	circumstances, is recognized as acceptable and appropriate by
616	reasonably prudent similar nurses.
617	(9)  Any action brought pursuant to this section is not a
618	claim for medical malpractice, and chapter 766 does not apply.
619	The provisions of s. 768.21(8) do not apply to a claim alleging
620	death of the patient.
621	(10)  For purposes of this section, punitive damages may be
622	awarded for conduct that is willful, wanton, gross or flagrant,
623	reckless or consciously indifferent to the rights of the
624	patient. Sections 768.72, 768.725, and 768.73 do not apply to
625	any civil action filed pursuant to this section.
626	Section 6.  Section 390.01118, Florida Statutes, is created
627	to read:
628	390.01118  Statute of limitations.--Any action for damages
629	brought under ss. 390.01113, 390.01114(3)(d)-(f), and 390.01117
630	shall be commenced within 2 years from the time the incident
631	giving rise to the action occurred or within 2 years from the
632	time the incident is discovered or should have been discovered
633	with the exercise of due diligence. In those actions covered by
634	ss. 390.01113, 390.01114(3)(d)-(f), and 390.01117 in which it
635	can be shown that fraudulent concealment or intentional
636	misrepresentation of fact prevented discovery of the injury, the
637	period of limitations is extended forward 2 years from the time
638	the injury is discovered with the exercise of due diligence.
639	Section 7.  Section 390.01118, Florida Statutes, as created
640	by this act, shall apply to causes of action that have accrued
641	prior to the effective date of that section; however, any such
642	cause of action that would not have been barred under prior law
643	may be brought within the time allowed by prior law or within 2
644	years after the effective date of that section, whichever is
645	earlier, and will be barred thereafter.
646	Section 8.  Section 390.01119, Florida Statutes, is created
647	to read:
648	390.01119  Medical records.--
649	(1)  Any person who fraudulently alters, defaces, or
650	falsifies any medical record related to an abortion or causes or
651	procures any of these offenses to be committed, commits a
652	misdemeanor of the second degree, punishable as provided in s.
653	775.082 or s. 775.083.
654	(2)  A conviction under subsection (1) is also grounds for
655	restriction, suspension, or termination of the license
656	privileges of a professional licensee.
657	Section 9.  Subsection (1) and paragraph (d) of subsection
658	(3) of section 390.012, Florida Statutes, are amended to read:
659	390.012  Powers of agency; rules; disposal of fetal
660	remains.--
661	(1)  The agency shall have the authority to develop and
662	enforce rules for the health, care, and treatment of persons in
663	abortion clinics and for the safe operation of such clinics.
664	(a)  The rules shall be reasonably related to the
665	preservation of maternal health of the clients.
666	(b)  The rules shall be in accordance with s. 797.03 and
667	may not impose an unconstitutional burden on a woman's freedom
668	to decide whether to terminate her pregnancy.
669	(c)  The rules shall prohibit the performance of abortions
670	in the third trimester other than in a hospital.
671	(d)  The rules shall prohibit a clinic from requesting a
672	patient to waive her ability to either file a complaint with any
673	disciplinary body or to litigate a cause of action based on the
674	care received in the clinic or a violation of her rights.
675	(e)(c)  The rules shall provide for:
676	1.  The performance of pregnancy termination procedures
677	only by a licensed physician.
678	2.  The making, protection, and preservation of patient
679	records, which shall be treated as medical records under chapter
680	458.
681	(3)  For clinics that perform or claim to perform abortions
682	after the first trimester of pregnancy, the agency shall adopt
683	rules pursuant to ss. 120.536(1) and 120.54 to implement the
684	provisions of this chapter, including the following:
685	(d)  Rules relating to the medical screening and evaluation
686	of each abortion clinic patient. At a minimum, these rules shall
687	require:
688	1.  A medical history including reported allergies to
689	medications, antiseptic solutions, or latex; past surgeries; and
690	an obstetric and gynecological history.
691	2.  A physical examination, including a bimanual
692	examination estimating uterine size and palpation of the adnexa.
693	3.  The appropriate laboratory tests, including:
694	a.  For an abortion in which an ultrasound examination is
695	not performed before the abortion procedure, Urine or blood
696	tests for pregnancy performed before the abortion procedure.
697	b.  A test for anemia.
698	c.  Rh typing, unless reliable written documentation of
699	blood type is available.
700	d.  Other tests as indicated from the physical examination.
701	4.  An ultrasound evaluation for all patients who elect to
702	have an abortion after the first trimester. The rules shall
703	require that if a person who is not a physician performs an
704	ultrasound examination, that person shall have documented
705	evidence that he or she has completed a course in the operation
706	of ultrasound equipment as prescribed in rule. The physician,
707	registered nurse, licensed practical nurse, advanced registered
708	nurse practitioner, or physician assistant shall review and
709	explain, at the request of the patient, the live ultrasound
710	images evaluation results, including an estimate of the probable
711	gestational age of the fetus, with the patient before the
712	abortion procedure is performed, unless the patient declines
713	pursuant to s. 390.0111.
714	5.  That the physician is responsible for estimating the
715	gestational age of the fetus based on the ultrasound examination
716	and obstetric standards in keeping with established standards of
717	care regarding the estimation of fetal age as defined in rule
718	and shall write the estimate in the patient's medical history.
719	The physician shall keep original prints of each ultrasound
720	examination of a patient in the patient's medical history file.
721	Section 10.  It is the intent of this act and the
722	Legislature to accord the utmost comity and respect to the
723	constitutional prerogatives of Florida's judiciary, and nothing
724	in this act should be construed as any effort to impinge upon
725	those prerogatives. To that end, should any court of competent
726	jurisdiction enter a final judgment concluding or declaring that
727	any provision of this act improperly encroaches upon the
728	authority of the Florida Supreme Court to determine the rules of
729	practice and procedure in Florida courts, the Legislature hereby
730	declares its intent that any such provision be construed as a
731	request for rule change pursuant to s. 2, Art. V of the State
732	Constitution and not as a mandatory legislative directive.
733	Section 11.  If any provision of this act or the
734	application thereof to any person or circumstance is held
735	invalid, the invalidity does not affect other provisions or
736	applications of the act which can be given effect without the
737	invalid provision or application, and to this end the provisions
738	of this act are declared severable.
739	Section 12.  This act shall take effect July 1, 2007.

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