CS/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
21that the portion of the not-for-profit entity deemed an
22agent of the state for purpose of indemnity is also an
23agency of the state for purpose of public records laws;
24providing definitions; requiring that each patient, or the
25patient's legal representative, receive written notice
26regarding the patient's exclusive remedy for injury or
27damage suffered; providing that an employee providing
28patient services is not an employee or agent of the state
29for purposes of workers' compensation; providing for
30application; providing an effective date.
32Be It Enacted by the Legislature of the State of Florida:
34     Section 1.  (1)  The Legislature finds that access to
35quality, affordable health care for residents of this state is a
36necessary goal for the state and that public teaching hospitals
37play an essential role in providing access to comprehensive
38health care services.
39     (2)  The Legislature finds that this state:
40     (a)  Has the largest and fastest growing percentage of
41citizens over the age of 65, who typically have their health
42care needs increase as their age increases.
43     (b)  Ranks fifth highest in the nation in the number of
44citizens who are uninsured.
45     (c)  Ranks eighth highest in the nation in active
46physicians age 60 or older, with 25 percent of this state's
47physicians over the age of 65.
48     (d)  Ranks third highest in the nation in the number of
49active physicians who are international medical graduates,
50creating a dependency on physicians educated and trained in
51other states and countries.
52     (e)  Has been impacted by medical malpractice, liability,
53and reimbursement issues.
54     (3)  The Legislature finds that the rapidly growing
55population and changing demographics of this state make it
56imperative that students continue to choose this state as the
57place to receive their medical education and practice medicine.
58     (4)  The Legislature finds that graduate medical education
59is the process of comprehensive specialty training that a
60medical school graduate undertakes to develop and refine skills.
61Residents work under the direct supervision of medical faculty,
62who provide guidance, training, and oversight, serving as role
63models to young physicians. The vast majority of this care takes
64place in large teaching hospitals, which serve as "safety nets"
65to many indigent and underserved patients who otherwise might
66not receive help. Resident training, including the supervision
67component, is an important part of ensuring access to care by
68residents and medical doctors in training who render appropriate
69and quality care. Medical faculty provide the vital link between
70access to quality care and balancing the demands of educating
71and training residents. Physicians who assume this role are
72often juggling the demands of patient care, teaching, research,
73and policy and budgetary issues related to the programs they
75     (5)  The Legislature finds that access to quality health
76care at public teaching hospitals is enhanced when public
77teaching hospitals affiliate and coordinate their common
78endeavors with medical schools. The existing definition of a
79teaching hospital in s. 408.07, Florida Statutes, contemplates
80such affiliations between teaching hospitals and accredited
81medical schools in this state. These affiliations are an
82integral part of the delivery of more efficient and economical
83health care services to patients in public teaching hospitals by
84offering a single, high quality of care to all patients
85regardless of income. These affiliations also provide quality
86graduate medical education programs to resident physicians who
87provide patient services at public teaching hospitals. These
88affiliations ensure continued access to quality, comprehensive
89health care services for residents of this state and, therefore,
90should be encouraged in order to maintain and expand such
92     (6)(a)  The Legislature finds that s. 381.0403, Florida
93Statutes, "The Community Hospital Education Act" (CHEP),
94established programs "intended to provide additional outpatient
95and inpatient services, a continuing supply of highly trained
96physicians, and graduate medical education." Section
97381.0403(9), Florida Statutes, before its amendment by chapter
982010-161, Laws of Florida, required the Executive Office of the
99Governor, the Department of Health, and the Agency for Health
100Care Administration to collaborate in the establishment of a
101committee to produce an annual report on graduate medical
102education which addressed the role of residents and medical
103faculty in the provision of health care; the relationship of
104graduate medical education to the state's physician workforce;
105the costs of training medical residents for hospitals, medical
106schools, teaching hospitals, including all hospital-medical
107affiliations, practice plans at all of the medical schools, and
108municipalities; the availability and adequacy of all sources of
109revenue to support graduate medical education and recommended
110alternative sources of funding for graduate medical education;
111and the use of state and federal funds for graduate medical
112education by hospitals receiving such funds.
113     (b)  The Graduate Medical Education Committee submitted
114Reports in 2009 and 2010 and, among other findings, determined
115that graduate medical education training has a direct impact on
116the quality and adequacy of the state's physician specialty and
117subspecialty workforce and the geographic distribution of
118physicians; the support and expansion of residency programs in
119critical need areas could result in more primary care
120practitioners and specialists practicing in this state; medical
121residents are more likely to practice in the state where they
122completed their graduate medical education training than where
123they went to medical school; quality, prestigious programs
124attract the best students, who stay as practicing physicians;
125medical residents act as "safety nets" to care for indigent,
126uninsured, and underserved patients in this state; supporting
127residency programs helps ensure this state's ability to train
128and retain the caliber of medical doctors its citizens and
129visitors deserve; and ongoing strategic planning for the
130expanded capacity of graduate medical education programs is
131crucial in order for the state to meet its health care needs.
132However, the January 2010 Annual Report of Graduate Medical
133Education in Florida by the Graduate Medical Education Committee
134indicated that the Association of American Medical Colleges
135ranked Florida 43rd nationally in the number of resident
136physicians in training per 100,000 population.
137     (7)  The Legislature finds that ss. 28 and 29, chapter
1382010-161, Laws of Florida, which amended ss. 381.0403 and
139381.4018, Florida Statutes, respectively, modified the existing
140law that established the responsibility of the Department of
141Health for physician workforce development and created a
142Physician Workforce Advisory Council and a graduate medical
143education innovation program. The legislative intent in s.
144381.4018, Florida Statutes, recognizes that "physician workforce
145planning is an essential component of ensuring that there is an
146adequate and appropriate supply of well-trained physicians to
147meet this state's future health care service needs as the
148general population and elderly population of the state
149increase." According to the Council on Graduate Medical
150Education's sixteenth report entitled "Physician Workforce
151Policy Guidelines for the United States, 2000-2010 (January
1522005)," this country could see shortages as high as 85,000
153physicians by 2020.
154     (8)  The Legislature finds, based upon the 2008 Florida
155Physician Workforce Annual Report from the Department of Health,
156that although the American Association of Medical Colleges
157reports that this state ranks 15th nationally in the number of
158active physicians per 100,000 population, these national-level
159data do not take into account many factors that determine the
160number of actively practicing physicians. Rather, additional
161concerns impact this state's physician workforce, including the
162current practice environment for physicians. These concerns
163include malpractice insurance and liability costs, reimbursement
164rates, administrative burdens, and the impact of Amendment 8,
165approved in November 2004, which created s. 26, Article X of the
166State Constitution, which prohibits persons found to have
167committed three or more incidents of medical malpractice from
168being licensed by this state to provide health care services as
169a medical doctor. As the department concluded, these service
170delivery concerns may hinder the recruitment of doctors to this
171state based on the real or perceived influence of the severity
172of the medical liability climate in this state.
173     (9)  The Legislature finds that when medical schools
174affiliate or enter into contracts with public teaching hospitals
175to provide patient services, but medical schools and their
176employees do not have the same level of protection against
177liability claims as public teaching hospitals and their public
178employees when providing the same patient services to the same
179patients, the exposure of these medical schools and their
180employees to claims arising out of alleged medical malpractice
181and other allegedly negligent acts is increased
182disproportionately. With the recent growth in the availability
183of state-established medical schools and medical education
184programs and ongoing efforts to support, strengthen, and
185increase the available residency training positions and medical
186faculty in both existing and newly designated teaching
187hospitals, this exposure and the consequent disparity will
188continue to increase. This will add to the current crisis with
189respect to the physician workforce in the state, which will be
190alleviated only through legislative relief.
191     (10)  The Legislature finds that the high cost of
192litigation and unequal liability exposure have adversely
193impacted the ability of some medical schools to provide or
194permit their employees to provide patient services to patients
195in public teaching hospitals. If corrective action is not taken,
196this health care crisis will lead to the reduction of patient
197services in public teaching hospitals. In addition, it will
198reduce the ability of public teaching hospitals to further
199support their public mission through the admission of patients
200to their teaching services and reduce the ability of public
201teaching hospitals to act as teaching sites for medical students
202from private and public medical schools. It will also contribute
203to a reduction in the high-quality medical care and training
204provided through public teaching hospitals that are affiliated
205with accredited medical schools as well as a reduction in
206essential research, program development, and infrastructure
207improvements in public teaching hospitals.
208     (11)  The Legislature finds that the public will benefit
209from corrective action to address the foregoing concerns.
210Designating medical schools and their employees as agents of the
211state who are subject to the protections of sovereign immunity
212when providing patient services in public teaching hospitals
213pursuant to an affiliation agreement or other written contract
214will maintain and increase that public benefit.
215     (12)  The Legislature finds that making high-quality health
216care available to the residents of this state is an overwhelming
217public necessity.
218     (13)  The Legislature finds that ensuring that medical
219schools and their employees are able continue to practice, treat
220patients, supervise medical and graduate education, engage in
221research, and provide administrative support and services in
222public teaching hospitals is an overwhelming public necessity.
223     (14)  It is the intent of the Legislature that medical
224schools that provide or permit their employees to provide
225patient services in public teaching hospitals pursuant to an
226affiliation agreement or other contract be subject to sovereign
227immunity protections under s. 768.28, Florida Statutes, in the
228same manner and to the same extent as the state, its agencies,
229and political subdivisions.
230     (15)  It is the intent of the Legislature that employees of
231medical schools who provide patient services in a public
232teaching hospital and the employees of public teaching hospitals
233be immune from lawsuits in the same manner and to the same
234extent as employees and agents of the state, its agencies, and
235political subdivisions and that they not be held personally
236liable in tort or named as a party defendant in an action while
237performing patient services, except as provided in s.
238768.28(9)(a), Florida Statutes.
239     (16)  The Legislature finds that there is an overwhelming
240public necessity for this legislative action and that there is
241no alternative method of meeting such public necessity.
242     Section 2.  Subsection (11) of section 766.1115, Florida
243Statutes, is amended to read:
244     766.1115  Health care providers; creation of agency
245relationship with governmental contractors.-
246     (11)  APPLICABILITY.-This section applies to incidents
247occurring on or after April 17, 1992. This section does not
248apply to any health care contract entered into by the Department
249of Corrections which is subject to s. 768.28(10)(a). This
250section does not apply to any affiliation agreement or other
251contract which is subject to s. 768.28(10)(f). Nothing in this
252section in any way reduces or limits the rights of the state or
253any of its agencies or subdivisions to any benefit currently
254provided under s. 768.28.
255     Section 3.  Paragraph (b) of subsection (9) of section
256768.28, Florida Statutes, is amended, and paragraph (f) is added
257to subsection (10) of that section, to read:
258     768.28  Waiver of sovereign immunity in tort actions;
259recovery limits; limitation on attorney fees; statute of
260limitations; exclusions; indemnification; risk management
262     (9)
263     (b)  As used in this subsection, the term:
264     1.  "Employee" includes any volunteer firefighter.
265     2.  "Officer, employee, or agent" includes, but is not
266limited to, any health care provider when providing services
267pursuant to s. 766.1115;, any member of the Florida Health
268Services Corps, as defined in s. 381.0302, who provides
269uncompensated care to medically indigent persons referred by the
270Department of Health; a Florida not-for-profit college,
271university, or medical school and the employees or agents of
272such college, university, or medical school pursuant to
273paragraph (10)(f);, and any public defender or her or his
274employee or agent, including, among others, an assistant public
275defender and an investigator.
276     (10)
277     (f)1.  For purposes of this section, any Florida not-for-
278profit college or university that owns or operates an accredited
279medical school or any of its employees or agents that have
280agreed in an affiliation agreement or other contract to provide
281patient services as agents of a teaching hospital, as defined in
282s. 408.07(45), which is owned or operated by the state, a
283county, a municipality, a public health trust, a special taxing
284district, any other governmental entity having health care
285responsibilities, or a not-for-profit entity that operates such
286facilities as an agent of that governmental entity under a lease
287or other contract, are agents of the state and are immune from
288liability for torts in the same manner and to the same extent as
289a teaching hospital and its governmental owner or operator while
290acting within the scope of and pursuant to guidelines
291established in the contract.
292     2.  The contract shall provide, to the extent permitted by
293law, for the indemnification of the state by the agent for any
294liability incurred up to the limits set forth in this chapter to
295the extent caused by the negligence of the college, university,
296or medical school or its employees or agents. As used in this
297paragraph, the term "patient services" means any comprehensive
298health care services, as defined in s. 641.19(4); the training
299or supervision of medical students, interns, residents, or
300fellows; access to or participation in medical research
301protocols; or any related executive, managerial, or
302administrative services provided according to an affiliation
303agreement or other contract with the teaching hospital or its
304governmental owner or operator. The contract must also provide
305that those limited portions of the college, university, or
306medical school that are directly providing services pursuant to
307the contract and that are considered an agency of the state for
308purposes of this section are acting on behalf of a public agency
309pursuant to s. 119.011(2). As used in this paragraph, the term,
310"employee or agent of a college, university, or medical school"
311means, but is not limited to, an officer, a member of the
312faculty, a health care practitioner or licensee defined in s.
313456.001, or any other person who is directly or vicariously
314liable. Such employee or agent of a college, university, or its
315medical school is not personally liable in tort and may not be
316named as a party defendant in any action arising from the
317provision of any such patient services, except as provided in
318paragraph (9)(a).
319     3.  The public teaching hospital, the medical school, or
320its employees or agents must provide written notice to each
321patient, or the patient's legal representative, the receipt of
322which must be acknowledged in writing, that the medical school
323and its employees are agents of the state and that the exclusive
324remedy for injury or damage suffered as a result of any act or
325omission of the public teaching hospital, the medical school, or
326an employee or agent of the medical school while acting within
327the scope of her or his duties pursuant to the affiliation
328agreement or other contract is by commencement of an action
329under this section.
330     4.  This paragraph does not make an employee providing
331patient services an employee or agent of the state for purposes
332of chapter 440.
333     Section 4.  This act shall take effect upon becoming a law,
334and applies to all claims accruing on or after that date.

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