| 1 | A bill to be entitled |
| 2 | An act relating to medical malpractice; amending s. |
| 3 | 395.0191, F.S.; requiring certain licensed health care |
| 4 | facilities to require licensed doctors of medicine and |
| 5 | doctors of osteopathic medicine on staff or with staff |
| 6 | privileges at the facility to comply with financial |
| 7 | responsibility requirements; requiring a facility to be |
| 8 | responsible for meeting those requirements with respect to |
| 9 | a claim against such a professional who fails to comply |
| 10 | with the financial responsibility provisions; providing |
| 11 | for indemnification; creating s. 627.41485, F.S.; |
| 12 | prohibiting the issuance of medical malpractice liability |
| 13 | insurance policies that only cover legal defense costs of |
| 14 | medical negligence or medical malpractice claims; allowing |
| 15 | such coverage when the insured has met financial |
| 16 | responsibility requirements by insurance, an escrow |
| 17 | account, or a letter of credit; specifying procedures and |
| 18 | exceptions; providing effective dates. |
| 19 |
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| 20 | Be It Enacted by the Legislature of the State of Florida: |
| 21 |
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| 22 | Section 1. Subsection (11) is added to section 395.0191, |
| 23 | Florida Statutes, to read: |
| 24 | 395.0191 Staff membership and clinical privileges.-- |
| 25 | (11) Each licensed facility shall be responsible for |
| 26 | ensuring that each physician licensed under chapter 458 or |
| 27 | osteopathic physician licensed under chapter 459 who is on the |
| 28 | facility staff or who has been granted clinical privileges at |
| 29 | the facility complies with the financial responsibility |
| 30 | requirements applicable to such physician at all times while he |
| 31 | or she is a member of the staff or has clinical privileges in |
| 32 | effect at the facility. In the event of a claim against such a |
| 33 | physician arising out of the rendering of, or the failure to |
| 34 | render, professional care or services at the facility, if the |
| 35 | physician is not in compliance with the financial responsibility |
| 36 | requirements with respect to the claim, the facility shall be |
| 37 | responsible for meeting the financial responsibility |
| 38 | requirements applicable to the physician under his or her |
| 39 | licensing statute. A physician to whom this subsection applies |
| 40 | shall indemnify a licensed facility for any judgments, |
| 41 | settlement costs, or other liabilities incurred by the licensed |
| 42 | facility pursuant to this subsection. |
| 43 | Section 2. Effective upon becoming a law and applicable to |
| 44 | contracts entered into, issued, or renewed on or after that |
| 45 | date, section 627.41485, Florida Statutes, is created to read: |
| 46 | 627.41485 Medical malpractice legal defense coverage; |
| 47 | prohibited issue.-- |
| 48 | (1) It shall be contrary to public policy in this state |
| 49 | for any insurer to issue legal defense coverage for the purpose |
| 50 | of providing legal defense services in conjunction with a claim |
| 51 | for medical negligence or medical malpractice under any theory |
| 52 | of law to a physician licensed under chapter 458 or osteopathic |
| 53 | physician licensed under chapter 459, unless, at the time such |
| 54 | coverage is issued, such physician has complied with the |
| 55 | financial responsibility requirements in accordance with one of |
| 56 | the following methods in the per claim amount applicable to him |
| 57 | or her: |
| 58 | (a) Establishing and maintaining an escrow account in |
| 59 | accordance with s. 458.320(1)(a) or (2)(a) or s. 459.0085(1)(a) |
| 60 | or (2)(a); |
| 61 | (b) Maintaining professional liability coverage in |
| 62 | accordance with s. 458.320(1)(b) or (2)(b) or s. 459.0085(1)(b) |
| 63 | or (2)(b); or |
| 64 | (c) Obtaining and maintaining an unexpired, irrevocable |
| 65 | letter of credit in accordance with s. 458.320(1)(c) or (2)(c) |
| 66 | or s. 459.0085(1)(c) or (2)(c); |
| 67 | |
| 68 | unless such physician or osteopathic physician is otherwise |
| 69 | exempt from the financial responsibility requirements as stated |
| 70 | in s. 458.320(5)(a), (b), (c), or (e) or s. 459.0085(5)(a), (b), |
| 71 | (c), or (e). |
| 72 | (2) The required financial responsibility must be in |
| 73 | effect at the time any legal defense coverage is issued by the |
| 74 | insurer or invoked by the physician or osteopathic physician and |
| 75 | must remain in effect throughout the period of legal |
| 76 | representation provided under such legal defense coverage. |
| 77 | (3) In the event a physician or osteopathic physician |
| 78 | fails to maintain financial responsibility as required by this |
| 79 | section for purposes of purchasing legal defense coverage, such |
| 80 | coverage shall be null and void and such insurer shall not be |
| 81 | liable for providing legal defense services. |
| 82 | (4) Any insurer issuing legal defense coverage in |
| 83 | accordance with this section shall require a physician or |
| 84 | osteopathic physician to show proof that he or she has financial |
| 85 | responsibility in accordance with subsection (1) prior to any |
| 86 | coverage being issued to such physician or osteopathic |
| 87 | physician. Such physician or osteopathic physician shall also |
| 88 | notify the insurer of any change in the status of his or her |
| 89 | financial responsibility. |
| 90 | (5) Any insurer who has issued legal defense coverage in |
| 91 | accordance with this section shall require a physician or |
| 92 | osteopathic physician to show proof that he or she has financial |
| 93 | responsibility before providing legal defense services. |
| 94 | (6) It is a violation of this code for any insurer to |
| 95 | issue or provide legal defense coverage to any physician or |
| 96 | osteopathic physician licensed in this state in contravention of |
| 97 | this section. |
| 98 | (7) This section shall not be construed to prohibit the |
| 99 | issuance of professional liability coverage for medical |
| 100 | malpractice or medical negligence that includes legal defense |
| 101 | coverage in conjunction with indemnity. |
| 102 | (8) This section shall not be construed to prohibit the |
| 103 | issuance of legal defense coverage to any physician or |
| 104 | osteopathic physician for purposes of the defense of any |
| 105 | disciplinary, administrative, contractual, or criminal action |
| 106 | brought by any federal or state regulatory board or agency, or |
| 107 | public or private entity, including, but not limited to, any |
| 108 | health care provider, health plan, or health insurer. |
| 109 | Section 3. Except as otherwise expressly provided in this |
| 110 | act, this act shall take effect July 1, 2008. |