CS/CS/HB 1393

A bill to be entitled
2An act relating to sovereign immunity; providing
3legislative findings and intent; amending s. 768.28, F.S.;
4providing sovereign immunity to certain health care
5providers affiliated with a medical school while providing
6patient services at a public teaching hospital; providing
7that such health care providers are agents of the state
8and are immune from certain liability for torts; requiring
9a contract to provide for indemnification; providing that
10the portion of the not-for-profit entity deemed an agent
11of the state for purpose of indemnity is also acting on
12behalf of an agency of the state for purpose of public
13records laws; providing definitions; requiring that each
14patient receive written notice regarding the patient's
15exclusive remedy for injury or damage suffered; providing
16that an employee providing patient services is not an
17employee or agent of the state for purposes of workers'
18compensation; providing for application; providing an
19effective date.
21Be It Enacted by the Legislature of the State of Florida:
23     Section 1.  (1)  The Legislature finds that access to
24quality, affordable health care for residents of this state is a
25necessary goal for the state and that public teaching hospitals
26play an essential role in providing access to comprehensive
27health care services.
28     (2)  The Legislature finds that this state:
29     (a)  Has the largest and fastest growing percentage of
30citizens over the age of 65, who typically have their health
31care needs increase as their age increases.
32     (b)  Ranks fifth highest in the nation in the number of
33citizens who are uninsured.
34     (c)  Ranks eighth highest in the nation in active
35physicians age 60 or older, with 25 percent of this state's
36physicians over the age of 65.
37     (d)  Ranks third highest in the nation in the number of
38active physicians who are international medical graduates,
39creating a dependency on physicians educated and trained in
40other states and countries.
41     (e)  Has been impacted by medical malpractice, liability,
42and reimbursement issues.
43     (3)  The Legislature finds that the rapidly growing
44population and changing demographics of this state make it
45imperative that students continue to choose this state as the
46place to receive their medical education and practice medicine.
47     (4)  The Legislature finds that graduate medical education
48is the process of comprehensive specialty training that a
49medical school graduate undertakes to develop and refine skills.
50Residents work under the direct supervision of medical faculty,
51who provide guidance, training, and oversight, serving as role
52models to young physicians. The vast majority of this care takes
53place in large teaching hospitals, which serve as "safety nets"
54to many indigent and underserved patients who otherwise might
55not receive help. Resident training, including the supervision
56component, is an important part of ensuring access to care by
57residents and medical doctors in training who render appropriate
58and quality care. Medical faculty provide the vital link between
59access to quality care and balancing the demands of educating
60and training residents. Physicians who assume this role are
61often juggling the demands of patient care, teaching, research,
62and policy and budgetary issues related to the programs they
64     (5)  The Legislature finds that access to quality health
65care at public teaching hospitals is enhanced when public
66teaching hospitals affiliate and coordinate their common
67endeavors with medical schools. The existing definition of a
68teaching hospital in s. 408.07, Florida Statutes, contemplates
69such affiliations between teaching hospitals and accredited
70medical schools in this state. These affiliations are an
71integral part of the delivery of more efficient and economical
72health care services to patients in public teaching hospitals by
73offering a single, high quality of care to all patients
74regardless of income. These affiliations also provide quality
75graduate medical education programs to resident physicians who
76provide patient services at public teaching hospitals. These
77affiliations ensure continued access to quality, comprehensive
78health care services for residents of this state and, therefore,
79should be encouraged in order to maintain and expand such
81     (6)(a)  The Legislature finds that s. 381.0403, Florida
82Statutes, "The Community Hospital Education Act" (CHEP),
83established programs "intended to provide additional outpatient
84and inpatient services, a continuing supply of highly trained
85physicians, and graduate medical education." Section
86381.0403(9), Florida Statutes, before its amendment by chapter
872010-161, Laws of Florida, required the Executive Office of the
88Governor, the Department of Health, and the Agency for Health
89Care Administration to collaborate in the establishment of a
90committee to produce an annual report on graduate medical
91education which addressed the role of residents and medical
92faculty in the provision of health care; the relationship of
93graduate medical education to the state's physician workforce;
94the costs of training medical residents for hospitals, medical
95schools, teaching hospitals, including all hospital-medical
96affiliations, practice plans at all of the medical schools, and
97municipalities; the availability and adequacy of all sources of
98revenue to support graduate medical education and recommended
99alternative sources of funding for graduate medical education;
100and the use of state and federal funds for graduate medical
101education by hospitals receiving such funds.
102     (b)  The Graduate Medical Education Committee submitted
103Reports in 2009 and 2010 and, among other findings, determined
104that graduate medical education training has a direct impact on
105the quality and adequacy of the state's physician specialty and
106subspecialty workforce and the geographic distribution of
107physicians; the support and expansion of residency programs in
108critical need areas could result in more primary care
109practitioners and specialists practicing in this state; medical
110residents are more likely to practice in the state where they
111completed their graduate medical education training than where
112they went to medical school; quality, prestigious programs
113attract the best students, who stay as practicing physicians;
114medical residents act as "safety nets" to care for indigent,
115uninsured, and underserved patients in this state; supporting
116residency programs helps ensure this state's ability to train
117and retain the caliber of medical doctors its citizens and
118visitors deserve; and ongoing strategic planning for the
119expanded capacity of graduate medical education programs is
120crucial in order for the state to meet its health care needs.
121However, the January 2010 Annual Report of Graduate Medical
122Education in Florida by the Graduate Medical Education Committee
123indicated that the Association of American Medical Colleges
124ranked Florida 43rd nationally in the number of resident
125physicians in training per 100,000 population.
126     (7)  The Legislature finds that ss. 28 and 29, chapter
1272010-161, Laws of Florida, which amended ss. 381.0403 and
128381.4018, Florida Statutes, respectively, modified the existing
129law that established the responsibility of the Department of
130Health for physician workforce development and created a
131Physician Workforce Advisory Council and a graduate medical
132education innovation program. The legislative intent in s.
133381.4018, Florida Statutes, recognizes that "physician workforce
134planning is an essential component of ensuring that there is an
135adequate and appropriate supply of well-trained physicians to
136meet this state's future health care service needs as the
137general population and elderly population of the state
138increase." According to the Council on Graduate Medical
139Education's sixteenth report entitled "Physician Workforce
140Policy Guidelines for the United States, 2000-2010 (January
1412005)," this country could see shortages as high as 85,000
142physicians by 2020.
143     (8)  The Legislature finds, based upon the 2008 Florida
144Physician Workforce Annual Report from the Department of Health,
145that although the American Association of Medical Colleges
146reports that this state ranks 15th nationally in the number of
147active physicians per 100,000 population, these national-level
148data do not take into account many factors that determine the
149number of actively practicing physicians. Rather, additional
150concerns impact this state's physician workforce, including the
151current practice environment for physicians. These concerns
152include malpractice insurance and liability costs, reimbursement
153rates, administrative burdens, and the impact of Amendment 8,
154approved in November 2004, which created s. 26, Article X of the
155State Constitution, which prohibits persons found to have
156committed three or more incidents of medical malpractice from
157being licensed by this state to provide health care services as
158a medical doctor. As the department concluded, these service
159delivery concerns may hinder the recruitment of doctors to this
160state based on the real or perceived influence of the severity
161of the medical liability climate in this state.
162     (9)  The Legislature finds that when medical schools
163affiliate or enter into contracts with public teaching hospitals
164to provide patient services, but medical schools and their
165employees do not have the same level of protection against
166liability claims as public teaching hospitals and their public
167employees when providing the same patient services to the same
168patients, the exposure of these medical schools and their
169employees to claims arising out of alleged medical malpractice
170and other allegedly negligent acts is increased
171disproportionately. With the recent growth in the availability
172of state-established medical schools and medical education
173programs and ongoing efforts to support, strengthen, and
174increase the available residency training positions and medical
175faculty in both existing and newly designated teaching
176hospitals, this exposure and the consequent disparity will
177continue to increase. This will add to the current crisis with
178respect to the physician workforce in the state, which will be
179alleviated only through legislative relief.
180     (10)  The Legislature finds that the high cost of
181litigation and unequal liability exposure have adversely
182impacted the ability of some medical schools to provide or
183permit their employees to provide patient services to patients
184in public teaching hospitals. If corrective action is not taken,
185this health care crisis will lead to the reduction of patient
186services in public teaching hospitals. In addition, it will
187reduce the ability of public teaching hospitals to further
188support their public mission through the admission of patients
189to their teaching services and reduce the ability of public
190teaching hospitals to act as teaching sites for medical students
191from private and public medical schools. It will also contribute
192to a reduction in the high-quality medical care and training
193provided through public teaching hospitals that are affiliated
194with accredited medical schools as well as a reduction in
195essential research, program development, and infrastructure
196improvements in public teaching hospitals.
197     (11)  The Legislature finds that the public will benefit
198from corrective action to address the foregoing concerns.
199Designating medical schools and their employees as agents of the
200state who are subject to the protections of sovereign immunity
201when providing patient services in public teaching hospitals
202pursuant to an affiliation agreement or other written contract
203will maintain and increase that public benefit.
204     (12)  The Legislature finds that making high-quality health
205care available to the residents of this state is an overwhelming
206public necessity.
207     (13)  The Legislature finds that ensuring that medical
208schools and their employees are able continue to practice, treat
209patients, supervise medical and graduate education, engage in
210research, and provide administrative support and services in
211public teaching hospitals is an overwhelming public necessity.
212     (14)  It is the intent of the Legislature that medical
213schools that provide or permit their employees to provide
214patient services in public teaching hospitals pursuant to an
215affiliation agreement or other contract be subject to sovereign
216immunity protections under s. 768.28, Florida Statutes, in the
217same manner and to the same extent as the state, its agencies,
218and political subdivisions.
219     (15)  It is the intent of the Legislature that employees of
220medical schools who provide patient services in a public
221teaching hospital and the employees of public teaching hospitals
222be immune from lawsuits in the same manner and to the same
223extent as employees and agents of the state, its agencies, and
224political subdivisions and that they not be held personally
225liable in tort or named as a party defendant in an action while
226performing patient services, except as provided in s.
227768.28(9)(a), Florida Statutes.
228     (16)  The Legislature finds that there is an overwhelming
229public necessity for this legislative action and that there is
230no alternative method of meeting such public necessity.
231     Section 2.  Paragraph (f) is added to subsection (10) of
232section 768.28, Florida Statutes, to read:
233     768.28  Waiver of sovereign immunity in tort actions;
234recovery limits; limitation on attorney fees; statute of
235limitations; exclusions; indemnification; risk management
237     (10)
238     (f)  Health care providers who are affiliated with a
239Florida not-for-profit college or university that owns or
240operates an accredited medical school or any of their employees
241or agents that have contractually agreed to act as agents of a
242teaching hospital, as defined in s. 408.07(45), that is owned or
243operated by the state, a county, a municipality, a public health
244trust, a special taxing district, or any other governmental
245entity having health care responsibilities to provide health
246care services in such teaching hospital shall be considered
247agents of the teaching hospital for the purposes of this section
248while acting within the scope of and pursuant to such contract.
249Such contract shall provide for the indemnification of the
250teaching hospital by the agent for any liabilities incurred up
251to the limits set out in this chapter. Those portions of the
252college or university that are directly providing health care
253services pursuant to the contract are acting on behalf of a
254public agency pursuant to s. 119.011(2). Patients must be given
255written notice that the medical school and its employees are
256agents of the state and that the exclusive remedy for injury or
257damage suffered as a result of any act or omission of the public
258teaching hospital, the medical school, or an employee or agent
259of the medical school while acting within the scope of her or
260his duties is by commencement of an action under this section.
261This paragraph does not designate persons providing contracted
262health care services as employees or agents of the state for the
263purposes of chapter 440.
264     Section 3.  This act shall take effect upon becoming a law,
265and applies to all claims accruing on or after that date.

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