HB 1393

1	A bill to be entitled
2	An act relating to sovereign immunity; providing
3	legislative findings and intent; amending s. 766.1115,
4	F.S.; providing that specified provisions relating to
5	sovereign immunity for health care providers do not apply
6	to certain affiliation agreements or contracts to provide
7	certain comprehensive health care services; amending s.
8	768.28, F.S.; expanding the definition of the term
9	"officer, employee, or agent" for purposes of sovereign
10	immunity to include certain health care providers;
11	providing that certain colleges and universities that own
12	or operate a medical school or any of its employees or
13	agents that have agreed in an affiliation agreement to
14	provide patient services as agents of a teaching hospital
15	that is owned or operated by a governmental entity having
16	health care responsibilities, or a not-for-profit entity
17	that operates such facilities as an agent of that
18	governmental entity under a lease, are agents of the state
19	and are immune from certain liability for torts; requiring
20	the contract to provide for indemnification; providing
21	definitions; requiring that each patient, or the patient's
22	legal representative, receive written notice regarding the
23	patient's exclusive remedy for injury or damage suffered;
24	providing that an employee providing patient services is
25	not an employee or agent of the state for purposes of
26	workers' compensation; providing for application;
27	providing an effective date.
28
29	Be It Enacted by the Legislature of the State of Florida:
30
31	Section 1.  (1)  The Legislature finds that access to
32	quality, affordable health care for residents of this state is a
33	necessary goal for the state and that public teaching hospitals
34	play an essential role in providing access to comprehensive
35	health care services.
36	(2)  The Legislature finds that this state:
37	(a)  Has the largest and fastest growing percentage of
38	citizens over the age of 65, who typically have their health
39	care needs increase as their age increases.
40	(b)  Ranks fifth highest in the nation in the number of
41	citizens who are uninsured.
42	(c)  Ranks eighth highest in the nation in active
43	physicians age 60 or older, with 25 percent of this state's
44	physicians over the age of 65.
45	(d)  Ranks third highest in the nation in the number of
46	active physicians who are international medical graduates,
47	creating a dependency on physicians educated and trained in
48	other states and countries.
49	(e)  Has been impacted by medical malpractice, liability,
50	and reimbursement issues.
51	(3)  The Legislature finds that the rapidly growing
52	population and changing demographics of this state make it
53	imperative that students continue to choose this state as the
54	place to receive their medical education and practice medicine.
55	(4)  The Legislature finds that graduate medical education
56	is the process of comprehensive specialty training that a
57	medical school graduate undertakes to develop and refine skills.
58	Residents work under the direct supervision of medical faculty,
59	who provide guidance, training, and oversight, serving as role
60	models to young physicians. The vast majority of this care takes
61	place in large teaching hospitals, which serve as "safety nets"
62	to many indigent and underserved patients who otherwise might
63	not receive help. Resident training, including the supervision
64	component, is an important part of ensuring access to care by
65	residents and medical doctors in training who render appropriate
66	and quality care. Medical faculty provide the vital link between
67	access to quality care and balancing the demands of educating
68	and training residents. Physicians who assume this role are
69	often juggling the demands of patient care, teaching, research,
70	and policy and budgetary issues related to the programs they
71	administer.
72	(5)  The Legislature finds that access to quality health
73	care at public teaching hospitals is enhanced when public
74	teaching hospitals affiliate and coordinate their common
75	endeavors with medical schools. The existing definition of a
76	teaching hospital in s. 408.07, Florida Statutes, contemplates
77	such affiliations between teaching hospitals and accredited
78	medical schools in this state. These affiliations are an
79	integral part of the delivery of more efficient and economical
80	health care services to patients in public teaching hospitals by
81	offering a single, high quality of care to all patients
82	regardless of income. These affiliations also provide quality
83	graduate medical education programs to resident physicians who
84	provide patient services at public teaching hospitals. These
85	affiliations ensure continued access to quality, comprehensive
86	health care services for residents of this state and, therefore,
87	should be encouraged in order to maintain and expand such
88	services.
89	(6)(a)  The Legislature finds that s. 381.0403, Florida
90	Statutes, "The Community Hospital Education Act" (CHEP),
91	established programs "intended to provide additional outpatient
92	and inpatient services, a continuing supply of highly trained
93	physicians, and graduate medical education." Section
94	381.0403(9), Florida Statutes, before its amendment by chapter
95	2010-161, Laws of Florida, required the Executive Office of the
96	Governor, the Department of Health, and the Agency for Health
97	Care Administration to collaborate in the establishment of a
98	committee to produce an annual report on graduate medical
99	education which addressed the role of residents and medical
100	faculty in the provision of health care; the relationship of
101	graduate medical education to the state's physician workforce;
102	the costs of training medical residents for hospitals, medical
103	schools, teaching hospitals, including all hospital-medical
104	affiliations, practice plans at all of the medical schools, and
105	municipalities; the availability and adequacy of all sources of
106	revenue to support graduate medical education and recommended
107	alternative sources of funding for graduate medical education;
108	and the use of state and federal funds for graduate medical
109	education by hospitals receiving such funds.
110	(b)  The Graduate Medical Education Committee submitted
111	Reports in 2009 and 2010 and, among other findings, determined
112	that graduate medical education training has a direct impact on
113	the quality and adequacy of the state's physician specialty and
114	subspecialty workforce and the geographic distribution of
115	physicians; the support and expansion of residency programs in
116	critical need areas could result in more primary care
117	practitioners and specialists practicing in this state; medical
118	residents are more likely to practice in the state where they
119	completed their graduate medical education training than where
120	they went to medical school; quality, prestigious programs
121	attract the best students, who stay as practicing physicians;
122	medical residents act as "safety nets" to care for indigent,
123	uninsured, and underserved patients in this state; supporting
124	residency programs helps ensure this state's ability to train
125	and retain the caliber of medical doctors its citizens and
126	visitors deserve; and ongoing strategic planning for the
127	expanded capacity of graduate medical education programs is
128	crucial in order for the state to meet its health care needs.
129	However, the January 2010 Annual Report of Graduate Medical
130	Education in Florida by the Graduate Medical Education Committee
131	indicated that the Association of American Medical Colleges
132	ranked Florida 43rd nationally in the number of resident
133	physicians in training per 100,000 population.
134	(7)  The Legislature finds that ss. 28 and 29, chapter
135	2010-161, Laws of Florida, which amended ss. 381.0403 and
136	381.4018, Florida Statutes, respectively, modified the existing
137	law that established the responsibility of the Department of
138	Health for physician workforce development and created a
139	Physician Workforce Advisory Council and a graduate medical
140	education innovation program. The legislative intent in s.
141	381.4018, Florida Statutes, recognizes that "physician workforce
142	planning is an essential component of ensuring that there is an
143	adequate and appropriate supply of well-trained physicians to
144	meet this state's future health care service needs as the
145	general population and elderly population of the state
146	increase." According to the Council on Graduate Medical
147	Education's sixteenth report entitled "Physician Workforce
148	Policy Guidelines for the United States, 2000-2010 (January
149	2005)," this country could see shortages as high as 85,000
150	physicians by 2020.
151	(8)  The Legislature finds, based upon the 2008 Florida
152	Physician Workforce Annual Report from the Department of Health,
153	that although the American Association of Medical Colleges
154	reports that this state ranks 15th nationally in the number of
155	active physicians per 100,000 population, these national-level
156	data do not take into account many factors that determine the
157	number of actively practicing physicians. Rather, additional
158	concerns impact this state's physician workforce, including the
159	current practice environment for physicians. These concerns
160	include malpractice insurance and liability costs, reimbursement
161	rates, administrative burdens, and the impact of Amendment 8,
162	approved in November 2004, which created s. 26, Article X of the
163	State Constitution, which prohibits persons found to have
164	committed three or more incidents of medical malpractice from
165	being licensed by this state to provide health care services as
166	a medical doctor. As the department concluded, these service
167	delivery concerns may hinder the recruitment of doctors to this
168	state based on the real or perceived influence of the severity
169	of the medical liability climate in this state.
170	(9)  The Legislature finds that when medical schools
171	affiliate or enter into contracts with public teaching hospitals
172	to provide patient services, but medical schools and their
173	employees do not have the same level of protection against
174	liability claims as public teaching hospitals and their public
175	employees when providing the same patient services to the same
176	patients, the exposure of these medical schools and their
177	employees to claims arising out of alleged medical malpractice
178	and other allegedly negligent acts is increased
179	disproportionately. With the recent growth in the availability
180	of state-established medical schools and medical education
181	programs and ongoing efforts to support, strengthen, and
182	increase the available residency training positions and medical
183	faculty in both existing and newly designated teaching
184	hospitals, this exposure and the consequent disparity will
185	continue to increase. This will add to the current crisis with
186	respect to the physician workforce in the state, which will be
187	alleviated only through legislative relief.
188	(10)  The Legislature finds that the high cost of
189	litigation and unequal liability exposure have adversely
190	impacted the ability of some medical schools to provide or
191	permit their employees to provide patient services to patients
192	in public teaching hospitals. If corrective action is not taken,
193	this health care crisis will lead to the reduction of patient
194	services in public teaching hospitals. In addition, it will
195	reduce the ability of public teaching hospitals to further
196	support their public mission through the admission of patients
197	to their teaching services and reduce the ability of public
198	teaching hospitals to act as teaching sites for medical students
199	from private and public medical schools. It will also contribute
200	to a reduction in the high-quality medical care and training
201	provided through public teaching hospitals that are affiliated
202	with accredited medical schools as well as a reduction in
203	essential research, program development, and infrastructure
204	improvements in public teaching hospitals.
205	(11)  The Legislature finds that the public will benefit
206	from corrective action to address the foregoing concerns.
207	Designating medical schools and their employees as agents of the
208	state who are subject to the protections of sovereign immunity
209	when providing patient services in public teaching hospitals
210	pursuant to an affiliation agreement or other written contract
211	will maintain and increase that public benefit.
212	(12)  The Legislature finds that making high-quality health
213	care available to the residents of this state is an overwhelming
214	public necessity.
215	(13)  The Legislature finds that ensuring that medical
216	schools and their employees are able continue to practice, treat
217	patients, supervise medical and graduate education, engage in
218	research, and provide administrative support and services in
219	public teaching hospitals is an overwhelming public necessity.
220	(14)  It is the intent of the Legislature that medical
221	schools that provide or permit their employees to provide
222	patient services in public teaching hospitals pursuant to an
223	affiliation agreement or other contract be subject to sovereign
224	immunity protections under s. 768.28, Florida Statutes, in the
225	same manner and to the same extent as the state, its agencies,
226	and political subdivisions.
227	(15)  It is the intent of the Legislature that employees of
228	medical schools who provide patient services in a public
229	teaching hospital and the employees of public teaching hospitals
230	be immune from lawsuits in the same manner and to the same
231	extent as employees and agents of the state, its agencies, and
232	political subdivisions and that they not be held personally
233	liable in tort or named as a party defendant in an action while
234	performing patient services, except as provided in s.
235	768.28(9)(a), Florida Statutes.
236	(16)  The Legislature finds that there is an overwhelming
237	public necessity for this legislative action and that there is
238	no alternative method of meeting such public necessity.
239	Section 2.  Subsection (11) of section 766.1115, Florida
240	Statutes, is amended to read:
241	766.1115  Health care providers; creation of agency
242	relationship with governmental contractors.-
243	(11)  APPLICABILITY.-This section applies to incidents
244	occurring on or after April 17, 1992. This section does not
245	apply to any health care contract entered into by the Department
246	of Corrections which is subject to s. 768.28(10)(a). This
247	section does not apply to any affiliation agreement or other
248	contract which is subject to s. 768.28(10)(f). Nothing in this
249	section in any way reduces or limits the rights of the state or
250	any of its agencies or subdivisions to any benefit currently
251	provided under s. 768.28.
252	Section 3.  Paragraph (b) of subsection (9) of section
253	768.28, Florida Statutes, is amended, and paragraph (f) is added
254	to subsection (10) of that section, to read:
255	768.28  Waiver of sovereign immunity in tort actions;
256	recovery limits; limitation on attorney fees; statute of
257	limitations; exclusions; indemnification; risk management
258	programs.-
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
263	limited to, any health care provider when providing services
264	pursuant to s. 766.1115;, any member of the Florida Health
265	Services Corps, as defined in s. 381.0302, who provides
266	uncompensated care to medically indigent persons referred by the
267	Department of Health; a Florida not-for-profit college,
268	university, or medical school and the employees or agents of
269	such college, university, or medical school pursuant to
270	paragraph (10)(f);, and any public defender or her or his
271	employee or agent, including, among others, an assistant public
272	defender and an investigator.
273	(10)
274	(f)1.  For purposes of this section, any Florida not-for-
275	profit college or university that owns or operates an accredited
276	medical school or any of its employees or agents that have
277	agreed in an affiliation agreement or other contract to provide
278	patient services as agents of a teaching hospital, as defined in
279	s. 408.07(45), which is owned or operated by the state, a
280	county, a municipality, a public health trust, a special taxing
281	district, any other governmental entity having health care
282	responsibilities, or a not-for-profit entity that operates such
283	facilities as an agent of that governmental entity under a lease
284	or other contract, are agents of the state and are immune from
285	liability for torts in the same manner and to the same extent as
286	a teaching hospital and its governmental owner or operator while
287	acting within the scope of and pursuant to guidelines
288	established in the contract.
289	2.  The contract shall provide, to the extent permitted by
290	law, for the indemnification of the state by the agent for any
291	liability incurred up to the limits set forth in this chapter to
292	the extent caused by the negligence of the college, university,
293	or medical school or its employees or agents. As used in this
294	paragraph, the term "patient services" means any comprehensive
295	health care services, as defined in s. 641.19(4); the training
296	or supervision of medical students, interns, residents, or
297	fellows; access to or participation in medical research
298	protocols; or any related executive, managerial, or
299	administrative services provided according to an affiliation
300	agreement or other contract with the teaching hospital or its
301	governmental owner or operator. As used in this paragraph, the
302	term, "employee or agent of a college, university, or medical
303	school" means, but is not limited to, an officer, a member of
304	the faculty, a health care practitioner or licensee defined in
305	s. 456.001, or any other person who is directly or vicariously
306	liable. Such employee or agent of a college, university, or its
307	medical school is not personally liable in tort and may not be
308	named as a party defendant in any action arising from the
309	provision of any such patient services, except as provided in
310	paragraph (9)(a).
311	3.  The public teaching hospital, the medical school, or
312	its employees or agents must provide written notice to each
313	patient, or the patient's legal representative, the receipt of
314	which must be acknowledged in writing, that the medical school
315	and its employees are agents of the state and that the exclusive
316	remedy for injury or damage suffered as a result of any act or
317	omission of the public teaching hospital, the medical school, or
318	an employee or agent of the medical school while acting within
319	the scope of her or his duties pursuant to the affiliation
320	agreement or other contract is by commencement of an action
321	under this section.
322	4.  This paragraph does not make an employee providing
323	patient services an employee or agent of the state for purposes
324	of chapter 440.
325	Section 4.  This act shall take effect upon becoming a law,
326	and applies to all claims accruing on or after that date.

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