Florida Senate - 2008 SB 1420

By Senator Jones

13-02879-08 20081420__

1

A bill to be entitled

2

An act relating to financial responsibility of physicians

3

and osteopathic physicians; amending s. 395.0191, F.S.;

4

requiring each licensed facility to ensure that certain

5

physicians and osteopathic physicians are in compliance

6

with financial responsibility requirements; requiring the

7

licensed facility to be responsible for fulfilling the

8

financial responsibility requirements of a physician or

9

osteopathic physician under certain circumstances;

10

requiring a physician or osteopathic physician to

11

indemnify a licensed facility for any liabilities incurred

12

by the facility in satisfaction of the physician's or

13

osteopathic physician's financial responsibility

14

requirements; creating s. 627.41496, F.S.; providing that

15

it is contrary to public policy for an insurer to issue

16

legal defense coverage for medical malpractice under

17

certain circumstances; providing exceptions; requiring

18

that financial responsibility be maintained at the time

19

any legal defense coverage is issued by the insurer or

20

invoked by the physician or osteopathic physician;

21

providing that legal defense coverage is void if a

22

physician or osteopathic physician fails to maintain

23

financial responsibility; requiring that a physician or

24

osteopathic physician demonstrate proof of financial

25

responsibility before an insurer may issue legal defense

26

coverage or provide legal defense services; prohibiting an

27

insurer from issuing or providing legal defense coverage

28

to a physician or osteopathic physician contrary to the

29

act; providing that the issuance of professional liability

30

coverage for medical malpractice or medical negligence

31

which includes legal defense coverage in conjunction with

32

indemnity is not prohibited; providing that the issuance

33

of legal defense coverage for the purpose of defense of

34

certain actions by a regulatory board or agency or public

35

or private entity is not prohibited; providing an

36

effective date.

37

38

Be It Enacted by the Legislature of the State of Florida:

39

40

     Section 1.  Subsection (11) is added to section

41

395.0191, Florida Statutes, to read::

42

     395.0191  Staff membership and clinical privileges.--

43

     (11) Each licensed facility is responsible for

44

ensuring that each doctor of medicine licensed under chapter

45

458, or doctor of osteopathic medicine licensed under chapter

46

459, who is on the facility staff or who has been granted

47

clinical privileges at the facility complies with the

48

financial responsibility requirements applicable to such

49

licensed professional at all times while the licensed

50

professional is a member of the staff or has clinical

51

privileges in effect at the facility. In the event of a claim

52

against a licensed professional to whom this subsection

53

applies who is a member of the staff or who has been granted

54

clinical privileges at the facility where the claim arises

55

out of the rendering of, or the failure to render,

56

professional care or services, if the licensed professional

57

is not in compliance with the financial responsibility

58

requirements with respect to the claim, the facility is

59

responsible for meeting the licensed professional's financial

60

responsibility requirements as set forth in the respective

61

licensing provisions. A licensed professional to whom this

62

subsection applies shall indemnify a licensed facility for

63

any judgments, settlements, or other liabilities incurred by

64

the licensed facility pursuant to this subsection in

65

satisfaction of the licensed professional's financial

66

responsibility requirements.

67

     Section 2.  Section 627.41496, Florida Statutes, is

68

created to read:

69

     627.41496 Medical malpractice legal defense coverage;

70

prohibited issue.--

71

     (1) It is contrary to public policy in this state for

72

any insurer to issue legal defense coverage for the purpose

73

of providing legal defense services in conjunction with a

74

claim for medical negligence or medical malpractice under any

75

theory of law, unless such coverage is issued to a physician

76

licensed under chapter 458, or an osteopathic physician

77

licensed under chapter 459, who has in effect at the time

78

such coverage is issued financial responsibility in

79

accordance with one of the following methods in the per-claim

80

amount applicable to such physician or osteopathic physician:

81

     (a) Establishing and maintaining an escrow account in

82

accordance with s. 458.320(1)(a) or (2)(a) or s. 459.0085

83

(1)(a) or (2)(a);

84

     (b) Maintaining professional liability coverage in

85

accordance with s. 458.320(1)(b) or (2)(b) or s.

86

459.0085(1)(b) or (2)(b); or

87

     (c) Obtaining and maintaining an unexpired,

88

irrevocable letter of credit in accordance with s.

89

458.320(1)(c) or (2)(c) or s. 459.0085(1)(c) or (2)(c),

90

91

unless such physician or osteopathic physician is otherwise

92

exempt from the financial responsibility requirements as

93

stated under s. 458.320(5)(a), (b), (c), or (e) or s.

94

459.0085(5)(a), (b), (c), or (e).

95

     (2) The required financial responsibility must be in

96

effect at the time any legal defense coverage is issued by

97

the insurer or invoked by the physician or osteopathic

98

physician and must remain in effect throughout the period of

99

legal representation provided under such legal defense

100

coverage.

101

     (3) If a physician or osteopathic physician fails to

102

maintain financial responsibility as required by this section

103

for purposes of purchasing legal defense coverage, such

104

coverage shall be null and void and such insurer is not

105

liable for providing legal defense services.

106

     (4) Any insurer issuing legal defense coverage in

107

accordance with this section shall require a physician or

108

osteopathic physician to show proof that he or she maintains

109

financial responsibility in accordance with subsection (1)

110

before any coverage is issued to such physician or

111

osteopathic physician. The physician or osteopathic physician

112

shall also notify the insurer of any change in the status of

113

his or her financial responsibility.

114

     (5) Any insurer who has issued legal defense coverage

115

in accordance with this section shall require a physician or

116

osteopathic physician to show proof that he or she maintains

117

financial responsibility before providing legal defense

118

services.

119

     (6) An insurer may not issue or provide legal defense

120

coverage to any physician or osteopathic physician licensed

121

in this state in contravention of this section.

122

     (7) This section does not prohibit the issuance of

123

professional liability coverage for medical malpractice or

124

medical negligence which includes legal defense coverage in

125

conjunction with indemnity.

126

     (8) This section does not prohibit the issuance of

127

legal defense coverage to any physician or osteopathic

128

physician for purposes of the defense of any disciplinary,

129

administrative, contractual, or criminal action brought by

130

any federal or state regulatory board or agency, or public or

131

private entity, including, but not limited to, any health

132

care provider, health plan, or health insurer.

133

     Section 3.  This act shall take effect upon becoming a law

134

and applies to contracts entered into, issued, or renewed on or

135

after that date.

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