HB 1393

A bill to be entitled
2An act relating to sovereign immunity; providing
3legislative findings and intent; amending s. 766.1115,
4F.S.; providing that specified provisions relating to
5sovereign immunity for health care providers do not apply
6to certain affiliation agreements or contracts to provide
7certain comprehensive health care services; amending s.
8768.28, F.S.; expanding the definition of the term
9"officer, employee, or agent" for purposes of sovereign
10immunity to include certain health care providers;
11providing that certain colleges and universities that own
12or operate a medical school or any of its employees or
13agents that have agreed in an affiliation agreement to
14provide patient services as agents of a teaching hospital
15that is owned or operated by a governmental entity having
16health care responsibilities, or a not-for-profit entity
17that operates such facilities as an agent of that
18governmental entity under a lease, are agents of the state
19and are immune from certain liability for torts; requiring
20the contract to provide for indemnification; providing
21definitions; requiring that each patient, or the patient's
22legal representative, receive written notice regarding the
23patient's exclusive remedy for injury or damage suffered;
24providing that an employee providing patient services is
25not an employee or agent of the state for purposes of
26workers' compensation; providing for application;
27providing an effective date.
29Be It Enacted by the Legislature of the State of Florida:
31     Section 1.  (1)  The Legislature finds that access to
32quality, affordable health care for residents of this state is a
33necessary goal for the state and that public teaching hospitals
34play an essential role in providing access to comprehensive
35health care services.
36     (2)  The Legislature finds that this state:
37     (a)  Has the largest and fastest growing percentage of
38citizens over the age of 65, who typically have their health
39care needs increase as their age increases.
40     (b)  Ranks fifth highest in the nation in the number of
41citizens who are uninsured.
42     (c)  Ranks eighth highest in the nation in active
43physicians age 60 or older, with 25 percent of this state's
44physicians over the age of 65.
45     (d)  Ranks third highest in the nation in the number of
46active physicians who are international medical graduates,
47creating a dependency on physicians educated and trained in
48other states and countries.
49     (e)  Has been impacted by medical malpractice, liability,
50and reimbursement issues.
51     (3)  The Legislature finds that the rapidly growing
52population and changing demographics of this state make it
53imperative that students continue to choose this state as the
54place to receive their medical education and practice medicine.
55     (4)  The Legislature finds that graduate medical education
56is the process of comprehensive specialty training that a
57medical school graduate undertakes to develop and refine skills.
58Residents work under the direct supervision of medical faculty,
59who provide guidance, training, and oversight, serving as role
60models to young physicians. The vast majority of this care takes
61place in large teaching hospitals, which serve as "safety nets"
62to many indigent and underserved patients who otherwise might
63not receive help. Resident training, including the supervision
64component, is an important part of ensuring access to care by
65residents and medical doctors in training who render appropriate
66and quality care. Medical faculty provide the vital link between
67access to quality care and balancing the demands of educating
68and training residents. Physicians who assume this role are
69often juggling the demands of patient care, teaching, research,
70and policy and budgetary issues related to the programs they
72     (5)  The Legislature finds that access to quality health
73care at public teaching hospitals is enhanced when public
74teaching hospitals affiliate and coordinate their common
75endeavors with medical schools. The existing definition of a
76teaching hospital in s. 408.07, Florida Statutes, contemplates
77such affiliations between teaching hospitals and accredited
78medical schools in this state. These affiliations are an
79integral part of the delivery of more efficient and economical
80health care services to patients in public teaching hospitals by
81offering a single, high quality of care to all patients
82regardless of income. These affiliations also provide quality
83graduate medical education programs to resident physicians who
84provide patient services at public teaching hospitals. These
85affiliations ensure continued access to quality, comprehensive
86health care services for residents of this state and, therefore,
87should be encouraged in order to maintain and expand such
89     (6)(a)  The Legislature finds that s. 381.0403, Florida
90Statutes, "The Community Hospital Education Act" (CHEP),
91established programs "intended to provide additional outpatient
92and inpatient services, a continuing supply of highly trained
93physicians, and graduate medical education." Section
94381.0403(9), Florida Statutes, before its amendment by chapter
952010-161, Laws of Florida, required the Executive Office of the
96Governor, the Department of Health, and the Agency for Health
97Care Administration to collaborate in the establishment of a
98committee to produce an annual report on graduate medical
99education which addressed the role of residents and medical
100faculty in the provision of health care; the relationship of
101graduate medical education to the state's physician workforce;
102the costs of training medical residents for hospitals, medical
103schools, teaching hospitals, including all hospital-medical
104affiliations, practice plans at all of the medical schools, and
105municipalities; the availability and adequacy of all sources of
106revenue to support graduate medical education and recommended
107alternative sources of funding for graduate medical education;
108and the use of state and federal funds for graduate medical
109education by hospitals receiving such funds.
110     (b)  The Graduate Medical Education Committee submitted
111Reports in 2009 and 2010 and, among other findings, determined
112that graduate medical education training has a direct impact on
113the quality and adequacy of the state's physician specialty and
114subspecialty workforce and the geographic distribution of
115physicians; the support and expansion of residency programs in
116critical need areas could result in more primary care
117practitioners and specialists practicing in this state; medical
118residents are more likely to practice in the state where they
119completed their graduate medical education training than where
120they went to medical school; quality, prestigious programs
121attract the best students, who stay as practicing physicians;
122medical residents act as "safety nets" to care for indigent,
123uninsured, and underserved patients in this state; supporting
124residency programs helps ensure this state's ability to train
125and retain the caliber of medical doctors its citizens and
126visitors deserve; and ongoing strategic planning for the
127expanded capacity of graduate medical education programs is
128crucial in order for the state to meet its health care needs.
129However, the January 2010 Annual Report of Graduate Medical
130Education in Florida by the Graduate Medical Education Committee
131indicated that the Association of American Medical Colleges
132ranked Florida 43rd nationally in the number of resident
133physicians in training per 100,000 population.
134     (7)  The Legislature finds that ss. 28 and 29, chapter
1352010-161, Laws of Florida, which amended ss. 381.0403 and
136381.4018, Florida Statutes, respectively, modified the existing
137law that established the responsibility of the Department of
138Health for physician workforce development and created a
139Physician Workforce Advisory Council and a graduate medical
140education innovation program. The legislative intent in s.
141381.4018, Florida Statutes, recognizes that "physician workforce
142planning is an essential component of ensuring that there is an
143adequate and appropriate supply of well-trained physicians to
144meet this state's future health care service needs as the
145general population and elderly population of the state
146increase." According to the Council on Graduate Medical
147Education's sixteenth report entitled "Physician Workforce
148Policy Guidelines for the United States, 2000-2010 (January
1492005)," this country could see shortages as high as 85,000
150physicians by 2020.
151     (8)  The Legislature finds, based upon the 2008 Florida
152Physician Workforce Annual Report from the Department of Health,
153that although the American Association of Medical Colleges
154reports that this state ranks 15th nationally in the number of
155active physicians per 100,000 population, these national-level
156data do not take into account many factors that determine the
157number of actively practicing physicians. Rather, additional
158concerns impact this state's physician workforce, including the
159current practice environment for physicians. These concerns
160include malpractice insurance and liability costs, reimbursement
161rates, administrative burdens, and the impact of Amendment 8,
162approved in November 2004, which created s. 26, Article X of the
163State Constitution, which prohibits persons found to have
164committed three or more incidents of medical malpractice from
165being licensed by this state to provide health care services as
166a medical doctor. As the department concluded, these service
167delivery concerns may hinder the recruitment of doctors to this
168state based on the real or perceived influence of the severity
169of the medical liability climate in this state.
170     (9)  The Legislature finds that when medical schools
171affiliate or enter into contracts with public teaching hospitals
172to provide patient services, but medical schools and their
173employees do not have the same level of protection against
174liability claims as public teaching hospitals and their public
175employees when providing the same patient services to the same
176patients, the exposure of these medical schools and their
177employees to claims arising out of alleged medical malpractice
178and other allegedly negligent acts is increased
179disproportionately. With the recent growth in the availability
180of state-established medical schools and medical education
181programs and ongoing efforts to support, strengthen, and
182increase the available residency training positions and medical
183faculty in both existing and newly designated teaching
184hospitals, this exposure and the consequent disparity will
185continue to increase. This will add to the current crisis with
186respect to the physician workforce in the state, which will be
187alleviated only through legislative relief.
188     (10)  The Legislature finds that the high cost of
189litigation and unequal liability exposure have adversely
190impacted the ability of some medical schools to provide or
191permit their employees to provide patient services to patients
192in public teaching hospitals. If corrective action is not taken,
193this health care crisis will lead to the reduction of patient
194services in public teaching hospitals. In addition, it will
195reduce the ability of public teaching hospitals to further
196support their public mission through the admission of patients
197to their teaching services and reduce the ability of public
198teaching hospitals to act as teaching sites for medical students
199from private and public medical schools. It will also contribute
200to a reduction in the high-quality medical care and training
201provided through public teaching hospitals that are affiliated
202with accredited medical schools as well as a reduction in
203essential research, program development, and infrastructure
204improvements in public teaching hospitals.
205     (11)  The Legislature finds that the public will benefit
206from corrective action to address the foregoing concerns.
207Designating medical schools and their employees as agents of the
208state who are subject to the protections of sovereign immunity
209when providing patient services in public teaching hospitals
210pursuant to an affiliation agreement or other written contract
211will maintain and increase that public benefit.
212     (12)  The Legislature finds that making high-quality health
213care available to the residents of this state is an overwhelming
214public necessity.
215     (13)  The Legislature finds that ensuring that medical
216schools and their employees are able continue to practice, treat
217patients, supervise medical and graduate education, engage in
218research, and provide administrative support and services in
219public teaching hospitals is an overwhelming public necessity.
220     (14)  It is the intent of the Legislature that medical
221schools that provide or permit their employees to provide
222patient services in public teaching hospitals pursuant to an
223affiliation agreement or other contract be subject to sovereign
224immunity protections under s. 768.28, Florida Statutes, in the
225same manner and to the same extent as the state, its agencies,
226and political subdivisions.
227     (15)  It is the intent of the Legislature that employees of
228medical schools who provide patient services in a public
229teaching hospital and the employees of public teaching hospitals
230be immune from lawsuits in the same manner and to the same
231extent as employees and agents of the state, its agencies, and
232political subdivisions and that they not be held personally
233liable in tort or named as a party defendant in an action while
234performing patient services, except as provided in s.
235768.28(9)(a), Florida Statutes.
236     (16)  The Legislature finds that there is an overwhelming
237public necessity for this legislative action and that there is
238no alternative method of meeting such public necessity.
239     Section 2.  Subsection (11) of section 766.1115, Florida
240Statutes, is amended to read:
241     766.1115  Health care providers; creation of agency
242relationship with governmental contractors.-
243     (11)  APPLICABILITY.-This section applies to incidents
244occurring on or after April 17, 1992. This section does not
245apply to any health care contract entered into by the Department
246of Corrections which is subject to s. 768.28(10)(a). This
247section does not apply to any affiliation agreement or other
248contract which is subject to s. 768.28(10)(f). Nothing in this
249section in any way reduces or limits the rights of the state or
250any of its agencies or subdivisions to any benefit currently
251provided under s. 768.28.
252     Section 3.  Paragraph (b) of subsection (9) of section
253768.28, Florida Statutes, is amended, and paragraph (f) is added
254to subsection (10) of that section, to read:
255     768.28  Waiver of sovereign immunity in tort actions;
256recovery limits; limitation on attorney fees; statute of
257limitations; exclusions; indemnification; risk management
259     (9)
260     (b)  As used in this subsection, the term:
261     1.  "Employee" includes any volunteer firefighter.
262     2.  "Officer, employee, or agent" includes, but is not
263limited to, any health care provider when providing services
264pursuant to s. 766.1115;, any member of the Florida Health
265Services Corps, as defined in s. 381.0302, who provides
266uncompensated care to medically indigent persons referred by the
267Department of Health; a Florida not-for-profit college,
268university, or medical school and the employees or agents of
269such college, university, or medical school pursuant to
270paragraph (10)(f);, and any public defender or her or his
271employee or agent, including, among others, an assistant public
272defender and an investigator.
273     (10)
274     (f)1.  For purposes of this section, any Florida not-for-
275profit college or university that owns or operates an accredited
276medical school or any of its employees or agents that have
277agreed in an affiliation agreement or other contract to provide
278patient services as agents of a teaching hospital, as defined in
279s. 408.07(45), which is owned or operated by the state, a
280county, a municipality, a public health trust, a special taxing
281district, any other governmental entity having health care
282responsibilities, or a not-for-profit entity that operates such
283facilities as an agent of that governmental entity under a lease
284or other contract, are agents of the state and are immune from
285liability for torts in the same manner and to the same extent as
286a teaching hospital and its governmental owner or operator while
287acting within the scope of and pursuant to guidelines
288established in the contract.
289     2.  The contract shall provide, to the extent permitted by
290law, for the indemnification of the state by the agent for any
291liability incurred up to the limits set forth in this chapter to
292the extent caused by the negligence of the college, university,
293or medical school or its employees or agents. As used in this
294paragraph, the term "patient services" means any comprehensive
295health care services, as defined in s. 641.19(4); the training
296or supervision of medical students, interns, residents, or
297fellows; access to or participation in medical research
298protocols; or any related executive, managerial, or
299administrative services provided according to an affiliation
300agreement or other contract with the teaching hospital or its
301governmental owner or operator. As used in this paragraph, the
302term, "employee or agent of a college, university, or medical
303school" means, but is not limited to, an officer, a member of
304the faculty, a health care practitioner or licensee defined in
305s. 456.001, or any other person who is directly or vicariously
306liable. Such employee or agent of a college, university, or its
307medical school is not personally liable in tort and may not be
308named as a party defendant in any action arising from the
309provision of any such patient services, except as provided in
310paragraph (9)(a).
311     3.  The public teaching hospital, the medical school, or
312its employees or agents must provide written notice to each
313patient, or the patient's legal representative, the receipt of
314which must be acknowledged in writing, that the medical school
315and its employees are agents of the state and that the exclusive
316remedy for injury or damage suffered as a result of any act or
317omission of the public teaching hospital, the medical school, or
318an employee or agent of the medical school while acting within
319the scope of her or his duties pursuant to the affiliation
320agreement or other contract is by commencement of an action
321under this section.
322     4.  This paragraph does not make an employee providing
323patient services an employee or agent of the state for purposes
324of chapter 440.
325     Section 4.  This act shall take effect upon becoming a law,
326and applies to all claims accruing on or after that date.

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