CS/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	that the portion of the not-for-profit entity deemed an
22	agent of the state for purpose of indemnity is also an
23	agency of the state for purpose of public records laws;
24	providing definitions; requiring that each patient, or the
25	patient's legal representative, receive written notice
26	regarding the patient's exclusive remedy for injury or
27	damage suffered; providing that an employee providing
28	patient services is not an employee or agent of the state
29	for purposes of workers' compensation; providing for
30	application; providing an effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1.  (1)  The Legislature finds that access to
35	quality, affordable health care for residents of this state is a
36	necessary goal for the state and that public teaching hospitals
37	play an essential role in providing access to comprehensive
38	health care services.
39	(2)  The Legislature finds that this state:
40	(a)  Has the largest and fastest growing percentage of
41	citizens over the age of 65, who typically have their health
42	care needs increase as their age increases.
43	(b)  Ranks fifth highest in the nation in the number of
44	citizens who are uninsured.
45	(c)  Ranks eighth highest in the nation in active
46	physicians age 60 or older, with 25 percent of this state's
47	physicians over the age of 65.
48	(d)  Ranks third highest in the nation in the number of
49	active physicians who are international medical graduates,
50	creating a dependency on physicians educated and trained in
51	other states and countries.
52	(e)  Has been impacted by medical malpractice, liability,
53	and reimbursement issues.
54	(3)  The Legislature finds that the rapidly growing
55	population and changing demographics of this state make it
56	imperative that students continue to choose this state as the
57	place to receive their medical education and practice medicine.
58	(4)  The Legislature finds that graduate medical education
59	is the process of comprehensive specialty training that a
60	medical school graduate undertakes to develop and refine skills.
61	Residents work under the direct supervision of medical faculty,
62	who provide guidance, training, and oversight, serving as role
63	models to young physicians. The vast majority of this care takes
64	place in large teaching hospitals, which serve as "safety nets"
65	to many indigent and underserved patients who otherwise might
66	not receive help. Resident training, including the supervision
67	component, is an important part of ensuring access to care by
68	residents and medical doctors in training who render appropriate
69	and quality care. Medical faculty provide the vital link between
70	access to quality care and balancing the demands of educating
71	and training residents. Physicians who assume this role are
72	often juggling the demands of patient care, teaching, research,
73	and policy and budgetary issues related to the programs they
74	administer.
75	(5)  The Legislature finds that access to quality health
76	care at public teaching hospitals is enhanced when public
77	teaching hospitals affiliate and coordinate their common
78	endeavors with medical schools. The existing definition of a
79	teaching hospital in s. 408.07, Florida Statutes, contemplates
80	such affiliations between teaching hospitals and accredited
81	medical schools in this state. These affiliations are an
82	integral part of the delivery of more efficient and economical
83	health care services to patients in public teaching hospitals by
84	offering a single, high quality of care to all patients
85	regardless of income. These affiliations also provide quality
86	graduate medical education programs to resident physicians who
87	provide patient services at public teaching hospitals. These
88	affiliations ensure continued access to quality, comprehensive
89	health care services for residents of this state and, therefore,
90	should be encouraged in order to maintain and expand such
91	services.
92	(6)(a)  The Legislature finds that s. 381.0403, Florida
93	Statutes, "The Community Hospital Education Act" (CHEP),
94	established programs "intended to provide additional outpatient
95	and inpatient services, a continuing supply of highly trained
96	physicians, and graduate medical education." Section
97	381.0403(9), Florida Statutes, before its amendment by chapter
98	2010-161, Laws of Florida, required the Executive Office of the
99	Governor, the Department of Health, and the Agency for Health
100	Care Administration to collaborate in the establishment of a
101	committee to produce an annual report on graduate medical
102	education which addressed the role of residents and medical
103	faculty in the provision of health care; the relationship of
104	graduate medical education to the state's physician workforce;
105	the costs of training medical residents for hospitals, medical
106	schools, teaching hospitals, including all hospital-medical
107	affiliations, practice plans at all of the medical schools, and
108	municipalities; the availability and adequacy of all sources of
109	revenue to support graduate medical education and recommended
110	alternative sources of funding for graduate medical education;
111	and the use of state and federal funds for graduate medical
112	education by hospitals receiving such funds.
113	(b)  The Graduate Medical Education Committee submitted
114	Reports in 2009 and 2010 and, among other findings, determined
115	that graduate medical education training has a direct impact on
116	the quality and adequacy of the state's physician specialty and
117	subspecialty workforce and the geographic distribution of
118	physicians; the support and expansion of residency programs in
119	critical need areas could result in more primary care
120	practitioners and specialists practicing in this state; medical
121	residents are more likely to practice in the state where they
122	completed their graduate medical education training than where
123	they went to medical school; quality, prestigious programs
124	attract the best students, who stay as practicing physicians;
125	medical residents act as "safety nets" to care for indigent,
126	uninsured, and underserved patients in this state; supporting
127	residency programs helps ensure this state's ability to train
128	and retain the caliber of medical doctors its citizens and
129	visitors deserve; and ongoing strategic planning for the
130	expanded capacity of graduate medical education programs is
131	crucial in order for the state to meet its health care needs.
132	However, the January 2010 Annual Report of Graduate Medical
133	Education in Florida by the Graduate Medical Education Committee
134	indicated that the Association of American Medical Colleges
135	ranked Florida 43rd nationally in the number of resident
136	physicians in training per 100,000 population.
137	(7)  The Legislature finds that ss. 28 and 29, chapter
138	2010-161, Laws of Florida, which amended ss. 381.0403 and
139	381.4018, Florida Statutes, respectively, modified the existing
140	law that established the responsibility of the Department of
141	Health for physician workforce development and created a
142	Physician Workforce Advisory Council and a graduate medical
143	education innovation program. The legislative intent in s.
144	381.4018, Florida Statutes, recognizes that "physician workforce
145	planning is an essential component of ensuring that there is an
146	adequate and appropriate supply of well-trained physicians to
147	meet this state's future health care service needs as the
148	general population and elderly population of the state
149	increase." According to the Council on Graduate Medical
150	Education's sixteenth report entitled "Physician Workforce
151	Policy Guidelines for the United States, 2000-2010 (January
152	2005)," this country could see shortages as high as 85,000
153	physicians by 2020.
154	(8)  The Legislature finds, based upon the 2008 Florida
155	Physician Workforce Annual Report from the Department of Health,
156	that although the American Association of Medical Colleges
157	reports that this state ranks 15th nationally in the number of
158	active physicians per 100,000 population, these national-level
159	data do not take into account many factors that determine the
160	number of actively practicing physicians. Rather, additional
161	concerns impact this state's physician workforce, including the
162	current practice environment for physicians. These concerns
163	include malpractice insurance and liability costs, reimbursement
164	rates, administrative burdens, and the impact of Amendment 8,
165	approved in November 2004, which created s. 26, Article X of the
166	State Constitution, which prohibits persons found to have
167	committed three or more incidents of medical malpractice from
168	being licensed by this state to provide health care services as
169	a medical doctor. As the department concluded, these service
170	delivery concerns may hinder the recruitment of doctors to this
171	state based on the real or perceived influence of the severity
172	of the medical liability climate in this state.
173	(9)  The Legislature finds that when medical schools
174	affiliate or enter into contracts with public teaching hospitals
175	to provide patient services, but medical schools and their
176	employees do not have the same level of protection against
177	liability claims as public teaching hospitals and their public
178	employees when providing the same patient services to the same
179	patients, the exposure of these medical schools and their
180	employees to claims arising out of alleged medical malpractice
181	and other allegedly negligent acts is increased
182	disproportionately. With the recent growth in the availability
183	of state-established medical schools and medical education
184	programs and ongoing efforts to support, strengthen, and
185	increase the available residency training positions and medical
186	faculty in both existing and newly designated teaching
187	hospitals, this exposure and the consequent disparity will
188	continue to increase. This will add to the current crisis with
189	respect to the physician workforce in the state, which will be
190	alleviated only through legislative relief.
191	(10)  The Legislature finds that the high cost of
192	litigation and unequal liability exposure have adversely
193	impacted the ability of some medical schools to provide or
194	permit their employees to provide patient services to patients
195	in public teaching hospitals. If corrective action is not taken,
196	this health care crisis will lead to the reduction of patient
197	services in public teaching hospitals. In addition, it will
198	reduce the ability of public teaching hospitals to further
199	support their public mission through the admission of patients
200	to their teaching services and reduce the ability of public
201	teaching hospitals to act as teaching sites for medical students
202	from private and public medical schools. It will also contribute
203	to a reduction in the high-quality medical care and training
204	provided through public teaching hospitals that are affiliated
205	with accredited medical schools as well as a reduction in
206	essential research, program development, and infrastructure
207	improvements in public teaching hospitals.
208	(11)  The Legislature finds that the public will benefit
209	from corrective action to address the foregoing concerns.
210	Designating medical schools and their employees as agents of the
211	state who are subject to the protections of sovereign immunity
212	when providing patient services in public teaching hospitals
213	pursuant to an affiliation agreement or other written contract
214	will maintain and increase that public benefit.
215	(12)  The Legislature finds that making high-quality health
216	care available to the residents of this state is an overwhelming
217	public necessity.
218	(13)  The Legislature finds that ensuring that medical
219	schools and their employees are able continue to practice, treat
220	patients, supervise medical and graduate education, engage in
221	research, and provide administrative support and services in
222	public teaching hospitals is an overwhelming public necessity.
223	(14)  It is the intent of the Legislature that medical
224	schools that provide or permit their employees to provide
225	patient services in public teaching hospitals pursuant to an
226	affiliation agreement or other contract be subject to sovereign
227	immunity protections under s. 768.28, Florida Statutes, in the
228	same manner and to the same extent as the state, its agencies,
229	and political subdivisions.
230	(15)  It is the intent of the Legislature that employees of
231	medical schools who provide patient services in a public
232	teaching hospital and the employees of public teaching hospitals
233	be immune from lawsuits in the same manner and to the same
234	extent as employees and agents of the state, its agencies, and
235	political subdivisions and that they not be held personally
236	liable in tort or named as a party defendant in an action while
237	performing patient services, except as provided in s.
238	768.28(9)(a), Florida Statutes.
239	(16)  The Legislature finds that there is an overwhelming
240	public necessity for this legislative action and that there is
241	no alternative method of meeting such public necessity.
242	Section 2.  Subsection (11) of section 766.1115, Florida
243	Statutes, is amended to read:
244	766.1115  Health care providers; creation of agency
245	relationship with governmental contractors.-
246	(11)  APPLICABILITY.-This section applies to incidents
247	occurring on or after April 17, 1992. This section does not
248	apply to any health care contract entered into by the Department
249	of Corrections which is subject to s. 768.28(10)(a). This
250	section does not apply to any affiliation agreement or other
251	contract which is subject to s. 768.28(10)(f). Nothing in this
252	section in any way reduces or limits the rights of the state or
253	any of its agencies or subdivisions to any benefit currently
254	provided under s. 768.28.
255	Section 3.  Paragraph (b) of subsection (9) of section
256	768.28, Florida Statutes, is amended, and paragraph (f) is added
257	to subsection (10) of that section, to read:
258	768.28  Waiver of sovereign immunity in tort actions;
259	recovery limits; limitation on attorney fees; statute of
260	limitations; exclusions; indemnification; risk management
261	programs.-
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
266	limited to, any health care provider when providing services
267	pursuant to s. 766.1115;, any member of the Florida Health
268	Services Corps, as defined in s. 381.0302, who provides
269	uncompensated care to medically indigent persons referred by the
270	Department of Health; a Florida not-for-profit college,
271	university, or medical school and the employees or agents of
272	such college, university, or medical school pursuant to
273	paragraph (10)(f);, and any public defender or her or his
274	employee or agent, including, among others, an assistant public
275	defender and an investigator.
276	(10)
277	(f)1.  For purposes of this section, any Florida not-for-
278	profit college or university that owns or operates an accredited
279	medical school or any of its employees or agents that have
280	agreed in an affiliation agreement or other contract to provide
281	patient services as agents of a teaching hospital, as defined in
282	s. 408.07(45), which is owned or operated by the state, a
283	county, a municipality, a public health trust, a special taxing
284	district, any other governmental entity having health care
285	responsibilities, or a not-for-profit entity that operates such
286	facilities as an agent of that governmental entity under a lease
287	or other contract, are agents of the state and are immune from
288	liability for torts in the same manner and to the same extent as
289	a teaching hospital and its governmental owner or operator while
290	acting within the scope of and pursuant to guidelines
291	established in the contract.
292	2.  The contract shall provide, to the extent permitted by
293	law, for the indemnification of the state by the agent for any
294	liability incurred up to the limits set forth in this chapter to
295	the extent caused by the negligence of the college, university,
296	or medical school or its employees or agents. As used in this
297	paragraph, the term "patient services" means any comprehensive
298	health care services, as defined in s. 641.19(4); the training
299	or supervision of medical students, interns, residents, or
300	fellows; access to or participation in medical research
301	protocols; or any related executive, managerial, or
302	administrative services provided according to an affiliation
303	agreement or other contract with the teaching hospital or its
304	governmental owner or operator. The contract must also provide
305	that those limited portions of the college, university, or
306	medical school that are directly providing services pursuant to
307	the contract and that are considered an agency of the state for
308	purposes of this section are acting on behalf of a public agency
309	pursuant to s. 119.011(2). As used in this paragraph, the term,
310	"employee or agent of a college, university, or medical school"
311	means, but is not limited to, an officer, a member of the
312	faculty, a health care practitioner or licensee defined in s.
313	456.001, or any other person who is directly or vicariously
314	liable. Such employee or agent of a college, university, or its
315	medical school is not personally liable in tort and may not be
316	named as a party defendant in any action arising from the
317	provision of any such patient services, except as provided in
318	paragraph (9)(a).
319	3.  The public teaching hospital, the medical school, or
320	its employees or agents must provide written notice to each
321	patient, or the patient's legal representative, the receipt of
322	which must be acknowledged in writing, that the medical school
323	and its employees are agents of the state and that the exclusive
324	remedy for injury or damage suffered as a result of any act or
325	omission of the public teaching hospital, the medical school, or
326	an employee or agent of the medical school while acting within
327	the scope of her or his duties pursuant to the affiliation
328	agreement or other contract is by commencement of an action
329	under this section.
330	4.  This paragraph does not make an employee providing
331	patient services an employee or agent of the state for purposes
332	of chapter 440.
333	Section 4.  This act shall take effect upon becoming a law,
334	and applies to all claims accruing on or after that date.

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