CS/CS/HB 1393

1	A bill to be entitled
2	An act relating to sovereign immunity; providing
3	legislative findings and intent; amending s. 768.28, F.S.;
4	providing sovereign immunity to certain health care
5	providers affiliated with a medical school while providing
6	patient services at a public teaching hospital; providing
7	that such health care providers are agents of the state
8	and are immune from certain liability for torts; requiring
9	a contract to provide for indemnification; providing that
10	the portion of the not-for-profit entity deemed an agent
11	of the state for purpose of indemnity is also acting on
12	behalf of an agency of the state for purpose of public
13	records laws; providing definitions; requiring that each
14	patient receive written notice regarding the patient's
15	exclusive remedy for injury or damage suffered; providing
16	that an employee providing patient services is not an
17	employee or agent of the state for purposes of workers'
18	compensation; providing for application; providing an
19	effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1.  (1)  The Legislature finds that access to
24	quality, affordable health care for residents of this state is a
25	necessary goal for the state and that public teaching hospitals
26	play an essential role in providing access to comprehensive
27	health care services.
28	(2)  The Legislature finds that this state:
29	(a)  Has the largest and fastest growing percentage of
30	citizens over the age of 65, who typically have their health
31	care needs increase as their age increases.
32	(b)  Ranks fifth highest in the nation in the number of
33	citizens who are uninsured.
34	(c)  Ranks eighth highest in the nation in active
35	physicians age 60 or older, with 25 percent of this state's
36	physicians over the age of 65.
37	(d)  Ranks third highest in the nation in the number of
38	active physicians who are international medical graduates,
39	creating a dependency on physicians educated and trained in
40	other states and countries.
41	(e)  Has been impacted by medical malpractice, liability,
42	and reimbursement issues.
43	(3)  The Legislature finds that the rapidly growing
44	population and changing demographics of this state make it
45	imperative that students continue to choose this state as the
46	place to receive their medical education and practice medicine.
47	(4)  The Legislature finds that graduate medical education
48	is the process of comprehensive specialty training that a
49	medical school graduate undertakes to develop and refine skills.
50	Residents work under the direct supervision of medical faculty,
51	who provide guidance, training, and oversight, serving as role
52	models to young physicians. The vast majority of this care takes
53	place in large teaching hospitals, which serve as "safety nets"
54	to many indigent and underserved patients who otherwise might
55	not receive help. Resident training, including the supervision
56	component, is an important part of ensuring access to care by
57	residents and medical doctors in training who render appropriate
58	and quality care. Medical faculty provide the vital link between
59	access to quality care and balancing the demands of educating
60	and training residents. Physicians who assume this role are
61	often juggling the demands of patient care, teaching, research,
62	and policy and budgetary issues related to the programs they
63	administer.
64	(5)  The Legislature finds that access to quality health
65	care at public teaching hospitals is enhanced when public
66	teaching hospitals affiliate and coordinate their common
67	endeavors with medical schools. The existing definition of a
68	teaching hospital in s. 408.07, Florida Statutes, contemplates
69	such affiliations between teaching hospitals and accredited
70	medical schools in this state. These affiliations are an
71	integral part of the delivery of more efficient and economical
72	health care services to patients in public teaching hospitals by
73	offering a single, high quality of care to all patients
74	regardless of income. These affiliations also provide quality
75	graduate medical education programs to resident physicians who
76	provide patient services at public teaching hospitals. These
77	affiliations ensure continued access to quality, comprehensive
78	health care services for residents of this state and, therefore,
79	should be encouraged in order to maintain and expand such
80	services.
81	(6)(a)  The Legislature finds that s. 381.0403, Florida
82	Statutes, "The Community Hospital Education Act" (CHEP),
83	established programs "intended to provide additional outpatient
84	and inpatient services, a continuing supply of highly trained
85	physicians, and graduate medical education." Section
86	381.0403(9), Florida Statutes, before its amendment by chapter
87	2010-161, Laws of Florida, required the Executive Office of the
88	Governor, the Department of Health, and the Agency for Health
89	Care Administration to collaborate in the establishment of a
90	committee to produce an annual report on graduate medical
91	education which addressed the role of residents and medical
92	faculty in the provision of health care; the relationship of
93	graduate medical education to the state's physician workforce;
94	the costs of training medical residents for hospitals, medical
95	schools, teaching hospitals, including all hospital-medical
96	affiliations, practice plans at all of the medical schools, and
97	municipalities; the availability and adequacy of all sources of
98	revenue to support graduate medical education and recommended
99	alternative sources of funding for graduate medical education;
100	and the use of state and federal funds for graduate medical
101	education by hospitals receiving such funds.
102	(b)  The Graduate Medical Education Committee submitted
103	Reports in 2009 and 2010 and, among other findings, determined
104	that graduate medical education training has a direct impact on
105	the quality and adequacy of the state's physician specialty and
106	subspecialty workforce and the geographic distribution of
107	physicians; the support and expansion of residency programs in
108	critical need areas could result in more primary care
109	practitioners and specialists practicing in this state; medical
110	residents are more likely to practice in the state where they
111	completed their graduate medical education training than where
112	they went to medical school; quality, prestigious programs
113	attract the best students, who stay as practicing physicians;
114	medical residents act as "safety nets" to care for indigent,
115	uninsured, and underserved patients in this state; supporting
116	residency programs helps ensure this state's ability to train
117	and retain the caliber of medical doctors its citizens and
118	visitors deserve; and ongoing strategic planning for the
119	expanded capacity of graduate medical education programs is
120	crucial in order for the state to meet its health care needs.
121	However, the January 2010 Annual Report of Graduate Medical
122	Education in Florida by the Graduate Medical Education Committee
123	indicated that the Association of American Medical Colleges
124	ranked Florida 43rd nationally in the number of resident
125	physicians in training per 100,000 population.
126	(7)  The Legislature finds that ss. 28 and 29, chapter
127	2010-161, Laws of Florida, which amended ss. 381.0403 and
128	381.4018, Florida Statutes, respectively, modified the existing
129	law that established the responsibility of the Department of
130	Health for physician workforce development and created a
131	Physician Workforce Advisory Council and a graduate medical
132	education innovation program. The legislative intent in s.
133	381.4018, Florida Statutes, recognizes that "physician workforce
134	planning is an essential component of ensuring that there is an
135	adequate and appropriate supply of well-trained physicians to
136	meet this state's future health care service needs as the
137	general population and elderly population of the state
138	increase." According to the Council on Graduate Medical
139	Education's sixteenth report entitled "Physician Workforce
140	Policy Guidelines for the United States, 2000-2010 (January
141	2005)," this country could see shortages as high as 85,000
142	physicians by 2020.
143	(8)  The Legislature finds, based upon the 2008 Florida
144	Physician Workforce Annual Report from the Department of Health,
145	that although the American Association of Medical Colleges
146	reports that this state ranks 15th nationally in the number of
147	active physicians per 100,000 population, these national-level
148	data do not take into account many factors that determine the
149	number of actively practicing physicians. Rather, additional
150	concerns impact this state's physician workforce, including the
151	current practice environment for physicians. These concerns
152	include malpractice insurance and liability costs, reimbursement
153	rates, administrative burdens, and the impact of Amendment 8,
154	approved in November 2004, which created s. 26, Article X of the
155	State Constitution, which prohibits persons found to have
156	committed three or more incidents of medical malpractice from
157	being licensed by this state to provide health care services as
158	a medical doctor. As the department concluded, these service
159	delivery concerns may hinder the recruitment of doctors to this
160	state based on the real or perceived influence of the severity
161	of the medical liability climate in this state.
162	(9)  The Legislature finds that when medical schools
163	affiliate or enter into contracts with public teaching hospitals
164	to provide patient services, but medical schools and their
165	employees do not have the same level of protection against
166	liability claims as public teaching hospitals and their public
167	employees when providing the same patient services to the same
168	patients, the exposure of these medical schools and their
169	employees to claims arising out of alleged medical malpractice
170	and other allegedly negligent acts is increased
171	disproportionately. With the recent growth in the availability
172	of state-established medical schools and medical education
173	programs and ongoing efforts to support, strengthen, and
174	increase the available residency training positions and medical
175	faculty in both existing and newly designated teaching
176	hospitals, this exposure and the consequent disparity will
177	continue to increase. This will add to the current crisis with
178	respect to the physician workforce in the state, which will be
179	alleviated only through legislative relief.
180	(10)  The Legislature finds that the high cost of
181	litigation and unequal liability exposure have adversely
182	impacted the ability of some medical schools to provide or
183	permit their employees to provide patient services to patients
184	in public teaching hospitals. If corrective action is not taken,
185	this health care crisis will lead to the reduction of patient
186	services in public teaching hospitals. In addition, it will
187	reduce the ability of public teaching hospitals to further
188	support their public mission through the admission of patients
189	to their teaching services and reduce the ability of public
190	teaching hospitals to act as teaching sites for medical students
191	from private and public medical schools. It will also contribute
192	to a reduction in the high-quality medical care and training
193	provided through public teaching hospitals that are affiliated
194	with accredited medical schools as well as a reduction in
195	essential research, program development, and infrastructure
196	improvements in public teaching hospitals.
197	(11)  The Legislature finds that the public will benefit
198	from corrective action to address the foregoing concerns.
199	Designating medical schools and their employees as agents of the
200	state who are subject to the protections of sovereign immunity
201	when providing patient services in public teaching hospitals
202	pursuant to an affiliation agreement or other written contract
203	will maintain and increase that public benefit.
204	(12)  The Legislature finds that making high-quality health
205	care available to the residents of this state is an overwhelming
206	public necessity.
207	(13)  The Legislature finds that ensuring that medical
208	schools and their employees are able continue to practice, treat
209	patients, supervise medical and graduate education, engage in
210	research, and provide administrative support and services in
211	public teaching hospitals is an overwhelming public necessity.
212	(14)  It is the intent of the Legislature that medical
213	schools that provide or permit their employees to provide
214	patient services in public teaching hospitals pursuant to an
215	affiliation agreement or other contract be subject to sovereign
216	immunity protections under s. 768.28, Florida Statutes, in the
217	same manner and to the same extent as the state, its agencies,
218	and political subdivisions.
219	(15)  It is the intent of the Legislature that employees of
220	medical schools who provide patient services in a public
221	teaching hospital and the employees of public teaching hospitals
222	be immune from lawsuits in the same manner and to the same
223	extent as employees and agents of the state, its agencies, and
224	political subdivisions and that they not be held personally
225	liable in tort or named as a party defendant in an action while
226	performing patient services, except as provided in s.
227	768.28(9)(a), Florida Statutes.
228	(16)  The Legislature finds that there is an overwhelming
229	public necessity for this legislative action and that there is
230	no alternative method of meeting such public necessity.
231	Section 2.  Paragraph (f) is added to subsection (10) of
232	section 768.28, Florida Statutes, to read:
233	768.28  Waiver of sovereign immunity in tort actions;
234	recovery limits; limitation on attorney fees; statute of
235	limitations; exclusions; indemnification; risk management
236	programs.-
237	(10)
238	(f)  Health care providers who are affiliated with a
239	Florida not-for-profit college or university that owns or
240	operates an accredited medical school or any of their employees
241	or agents that have contractually agreed to act as agents of a
242	teaching hospital, as defined in s. 408.07(45), that is owned or
243	operated by the state, a county, a municipality, a public health
244	trust, a special taxing district, or any other governmental
245	entity having health care responsibilities to provide health
246	care services in such teaching hospital shall be considered
247	agents of the teaching hospital for the purposes of this section
248	while acting within the scope of and pursuant to such contract.
249	Such contract shall provide for the indemnification of the
250	teaching hospital by the agent for any liabilities incurred up
251	to the limits set out in this chapter. Those portions of the
252	college or university that are directly providing health care
253	services pursuant to the contract are acting on behalf of a
254	public agency pursuant to s. 119.011(2). Patients must be given
255	written notice that the medical school and its employees are
256	agents of the state and that the exclusive remedy for injury or
257	damage suffered as a result of any act or omission of the public
258	teaching hospital, the medical school, or an employee or agent
259	of the medical school while acting within the scope of her or
260	his duties is by commencement of an action under this section.
261	This paragraph does not designate persons providing contracted
262	health care services as employees or agents of the state for the
263	purposes of chapter 440.
264	Section 3.  This act shall take effect upon becoming a law,
265	and applies to all claims accruing on or after that date.

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