Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 1590
       
       
       
       
       
       
                                Barcode 155418                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/13/2011           .                                
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       The Committee on Banking and Insurance (Hays) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 458.3175, Florida Statutes, is created
    6  to read:
    7         458.3175 Expert witness certificate.—
    8         (1)(a) The department shall issue a certificate authorizing
    9  a physician who holds an active and valid license to practice
   10  medicine in another state or a province of Canada to provide
   11  expert testimony in this state, if the physician submits to the
   12  department:
   13         1. A complete registration application containing the
   14  physician’s legal name, mailing address, telephone number,
   15  business locations, the names of the jurisdictions where the
   16  physician holds an active and valid license to practice
   17  medicine, and the license number or other identifying number
   18  issued to the physician by the jurisdiction’s licensing entity;
   19  and
   20         2. An application fee of $50.
   21         (b) The department shall approve an application for an
   22  expert witness certificate within 7 business days after receipt
   23  of the completed application and payment of the application fee
   24  if the applicant holds an active and valid license to practice
   25  medicine in another state or a province of Canada and has not
   26  had a previous expert witness certificate revoked by the board.
   27  An application is approved by default if the department does not
   28  act upon the application within the required period. A physician
   29  must notify the department in writing of his or her intent to
   30  rely on a certificate approved by default.
   31         (c) An expert witness certificate is valid for 2 years
   32  after the date of issuance.
   33         (2) An expert witness certificate authorizes the physician
   34  to whom the certificate is issued to do only the following:
   35         (a) Provide a verified written medical expert opinion as
   36  provided in s. 766.203.
   37         (b) Provide expert testimony about the prevailing
   38  professional standard of care in connection with medical
   39  negligence litigation pending in this state against a physician
   40  licensed under this chapter or chapter 459.
   41         (3) An expert witness certificate does not authorize a
   42  physician to engage in the practice of medicine as defined in s.
   43  458.305. A physician issued a certificate under this section who
   44  does not otherwise practice medicine in this state is not
   45  required to obtain a license under this chapter or pay any
   46  license fees, including, but not limited to, a neurological
   47  injury compensation assessment. An expert witness certificate
   48  shall be treated as a license in any disciplinary action, and
   49  the holder of an expert witness certificate shall be subject to
   50  discipline by the board.
   51         Section 2. Subsection (11) is added to section 458.331,
   52  Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
   53  of that section are redesignated as paragraphs (pp) through
   54  (rr), respectively, and a new paragraph (oo) is added to that
   55  subsection, to read:
   56         458.331 Grounds for disciplinary action; action by the
   57  board and department.—
   58         (1) The following acts constitute grounds for denial of a
   59  license or disciplinary action, as specified in s. 456.072(2):
   60         (oo) Providing misleading, deceptive, or fraudulent expert
   61  witness testimony related to the practice of medicine.
   62         (11) The purpose of this section is to facilitate uniform
   63  discipline for those acts made punishable under this section
   64  and, to this end, a reference to this section constitutes a
   65  general reference under the doctrine of incorporation by
   66  reference.
   67         Section 3. Subsection (6) of section 458.351, Florida
   68  Statutes, is renumbered as subsection (7), and a new subsection
   69  (6) is added to that section to read:
   70         458.351 Reports of adverse incidents in office practice
   71  settings.—
   72         (6)(a) The board shall adopt rules establishing a standard
   73  informed consent form that sets forth the recognized specific
   74  risks related to cataract surgery. The board must propose such
   75  rules within 90 days after the effective date of this
   76  subsection.
   77         (b) Before formally proposing the rule, the board must
   78  consider information from physicians licensed under this chapter
   79  or chapter 459 regarding recognized specific risks related to
   80  cataract surgery and the standard informed consent forms adopted
   81  for use in the medical field by other states.
   82         (c) A patient’s informed consent is not executed until the
   83  patient, or a person authorized by the patient to give consent,
   84  and a competent witness sign the form adopted by the board.
   85         (d) An incident resulting from recognized specific risks
   86  described in the signed consent form is not considered an
   87  adverse incident for purposes of s. 395.0197 and this section.
   88         (e) In a civil action or administrative proceeding against
   89  a physician based on his or her alleged failure to properly
   90  disclose the risks of cataract surgery, a patient’s informed
   91  consent executed as provided in paragraph (c) on the form
   92  adopted by the board is admissible as evidence and creates a
   93  rebuttable presumption that the physician properly disclosed the
   94  risks.
   95         Section 4. Section 459.0066, Florida Statutes, is created
   96  to read:
   97         459.0066 Expert witness certificate.—
   98         (1)(a) The department shall issue a certificate authorizing
   99  a physician who holds an active and valid license to practice
  100  osteopathic medicine in another state or a province of Canada to
  101  provide expert testimony in this state, if the physician submits
  102  to the department:
  103         1. A complete registration application containing the
  104  physician’s legal name, mailing address, telephone number,
  105  business locations, the names of the jurisdictions where the
  106  physician holds an active and valid license to practice
  107  osteopathic medicine, and the license number or other
  108  identifying number issued to the physician by the jurisdiction’s
  109  licensing entity; and
  110         2. An application fee of $50.
  111         (b) The department shall approve an application for an
  112  expert witness certificate within 7 business days after receipt
  113  of the completed application and payment of the application fee
  114  if the applicant holds an active and valid license to practice
  115  osteopathic medicine in another state or a province of Canada
  116  and has not had a previous expert witness certificate revoked by
  117  the board. An application is approved by default if the
  118  department does not act upon the application within the required
  119  period. A physician must notify the department in writing of his
  120  or her intent to rely on a certificate approved by default.
  121         (c) An expert witness certificate is valid for 2 years
  122  after the date of issuance.
  123         (2) An expert witness certificate authorizes the physician
  124  to whom the certificate is issued to do only the following:
  125         (a) Provide a verified written medical expert opinion as
  126  provided in s. 766.203.
  127         (b) Provide expert testimony about the prevailing
  128  professional standard of care in connection with medical
  129  negligence litigation pending in this state against a physician
  130  licensed under chapter 458 or this chapter.
  131         (3) An expert witness certificate does not authorize a
  132  physician to engage in the practice of osteopathic medicine as
  133  defined in s. 459.003. A physician issued a certificate under
  134  this section who does not otherwise practice osteopathic
  135  medicine in this state is not required to obtain a license under
  136  this chapter or pay any license fees, including, but not limited
  137  to, a neurological injury compensation assessment. An expert
  138  witness certificate shall be treated as a license in any
  139  disciplinary action, and the holder of an expert witness
  140  certificate shall be subject to discipline by the board.
  141         Section 5. Subsection (11) is added to section 459.015,
  142  Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
  143  of that section are redesignated as paragraphs (rr) through
  144  (tt), respectively, and a new paragraph (qq) is added to that
  145  subsection, to read:
  146         459.015 Grounds for disciplinary action; action by the
  147  board and department.—
  148         (1) The following acts constitute grounds for denial of a
  149  license or disciplinary action, as specified in s. 456.072(2):
  150         (qq) Providing misleading, deceptive, or fraudulent expert
  151  witness testimony related to the practice of osteopathic
  152  medicine.
  153         (11) The purpose of this section is to facilitate uniform
  154  discipline for those acts made punishable under this section
  155  and, to this end, a reference to this section constitutes a
  156  general reference under the doctrine of incorporation by
  157  reference.
  158         Section 6. Section 466.005, Florida Statutes, is created to
  159  read:
  160         466.005 Expert witness certificate.—
  161         (1)(a) The department shall issue a certificate authorizing
  162  a dentist who holds an active and valid license to practice
  163  dentistry in another state or a province of Canada to provide
  164  expert testimony in this state, if the dentist submits to the
  165  department:
  166         1. A complete registration application containing the
  167  dentist’s legal name, mailing address, telephone number,
  168  business locations, the names of the jurisdictions where the
  169  dentist holds an active and valid license to practice dentistry,
  170  and the license number or other identifying number issued to the
  171  dentist by the jurisdiction’s licensing entity; and
  172         2. An application fee of $50.
  173         (b) The department shall approve an application for an
  174  expert witness certificate within 7 business days after receipt
  175  of the completed application and payment of the application fee
  176  if the applicant holds an active and valid license to practice
  177  dentistry in another state or a province of Canada and has not
  178  had a previous expert witness certificate revoked by the board.
  179  An application is approved by default if the department does not
  180  act upon the application within the required period. A dentist
  181  must notify the department in writing of his or her intent to
  182  rely on a certificate approved by default.
  183         (c) An expert witness certificate is valid for 2 years
  184  after the date of issuance.
  185         (2) An expert witness certificate authorizes the dentist to
  186  whom the certificate is issued to do only the following:
  187         (a) Provide a verified written medical expert opinion as
  188  provided in s. 766.203.
  189         (b) Provide expert testimony about the prevailing
  190  professional standard of care in connection with medical
  191  negligence litigation pending in this state against a dentist
  192  licensed under this chapter.
  193         (3) An expert witness certificate does not authorize a
  194  dentist to engage in the practice of dentistry as defined in s.
  195  466.003. A dentist issued a certificate under this section who
  196  does not otherwise practice dentistry in this state is not
  197  required to obtain a license under this chapter or pay any
  198  license fees. An expert witness certificate shall be treated as
  199  a license in any disciplinary action, and the holder of an
  200  expert witness certificate shall be subject to discipline by the
  201  board.
  202         Section 7. Subsection (8) is added to section 466.028,
  203  Florida Statutes, paragraph (ll) of subsection (1) of that
  204  section is redesignated as paragraph (mm), and a new paragraph
  205  (ll) is added to that subsection, to read:
  206         466.028 Grounds for disciplinary action; action by the
  207  board.—
  208         (1) The following acts constitute grounds for denial of a
  209  license or disciplinary action, as specified in s. 456.072(2):
  210         (ll) Providing misleading, deceptive, or fraudulent expert
  211  witness testimony related to the practice of dentistry.
  212         (8) The purpose of this section is to facilitate uniform
  213  discipline for those acts made punishable under this section
  214  and, to this end, a reference to this section constitutes a
  215  general reference under the doctrine of incorporation by
  216  reference.
  217         Section 8. Subsection (6) of section 459.026, Florida
  218  Statutes, is renumbered as subsection (7), and a new subsection
  219  (6) is added to that section to read:
  220         459.026 Reports of adverse incidents in office practice
  221  settings.—
  222         (6)(a) The board shall adopt rules establishing a standard
  223  informed consent form that sets forth the recognized specific
  224  risks related to cataract surgery. The board must propose such
  225  rules within 90 days after the effective date of this
  226  subsection.
  227         (b) Before formally proposing the rule, the board must
  228  consider information from physicians licensed under chapter 458
  229  or this chapter regarding recognized specific risks related to
  230  cataract surgery and the standard informed consent forms adopted
  231  for use in the medical field by other states.
  232         (c) A patient’s informed consent is not executed until the
  233  patient, or a person authorized by the patient to give consent,
  234  and a competent witness sign the form adopted by the board.
  235         (d) An incident resulting from recognized specific risks
  236  described in the signed consent form is not considered an
  237  adverse incident for purposes of s. 395.0197 and this section.
  238         (e) In a civil action or administrative proceeding against
  239  a physician based on his or her alleged failure to properly
  240  disclose the risks of cataract surgery, a patient’s informed
  241  consent executed as provided in paragraph (c) on the form
  242  adopted by the board is admissible as evidence and creates a
  243  rebuttable presumption that the physician properly disclosed the
  244  risks.
  245         Section 9. Paragraph (b) of subsection (1) of section
  246  627.4147, Florida Statutes, is amended to read:
  247         627.4147 Medical malpractice insurance contracts.—
  248         (1) In addition to any other requirements imposed by law,
  249  each self-insurance policy as authorized under s. 627.357 or s.
  250  624.462 or insurance policy providing coverage for claims
  251  arising out of the rendering of, or the failure to render,
  252  medical care or services, including those of the Florida Medical
  253  Malpractice Joint Underwriting Association, shall include:
  254         (b)1. Except as provided in subparagraph 2., a clause
  255  authorizing the insurer or self-insurer to determine, to make,
  256  and to conclude, without the permission of the insured, any
  257  offer of admission of liability and for arbitration pursuant to
  258  s. 766.106, settlement offer, or offer of judgment, if the offer
  259  is within the policy limits. It is against public policy for any
  260  insurance or self-insurance policy to contain a clause giving
  261  the insured the exclusive right to veto any offer for admission
  262  of liability and for arbitration made pursuant to s. 766.106,
  263  settlement offer, or offer of judgment, when such offer is
  264  within the policy limits. However, any offer of admission of
  265  liability, settlement offer, or offer of judgment made by an
  266  insurer or self-insurer shall be made in good faith and in the
  267  best interests of the insured.
  268         2.a. With respect to dentists licensed under chapter 466, A
  269  clause clearly stating whether or not the insured has the
  270  exclusive right to veto any offer of admission of liability and
  271  for arbitration pursuant to s. 766.106, settlement offer, or
  272  offer of judgment if the offer is within policy limits. An
  273  insurer or self-insurer shall not make or conclude, without the
  274  permission of the insured, any offer of admission of liability
  275  and for arbitration pursuant to s. 766.106, settlement offer, or
  276  offer of judgment, if such offer is outside the policy limits.
  277  However, any offer for admission of liability and for
  278  arbitration made under s. 766.106, settlement offer, or offer of
  279  judgment made by an insurer or self-insurer shall be made in
  280  good faith and in the best interest of the insured.
  281         2.b. If the policy contains a clause stating the insured
  282  does not have the exclusive right to veto any offer or admission
  283  of liability and for arbitration made pursuant to s. 766.106,
  284  settlement offer or offer of judgment, the insurer or self
  285  insurer shall provide to the insured or the insured’s legal
  286  representative by certified mail, return receipt requested, a
  287  copy of the final offer of admission of liability and for
  288  arbitration made pursuant to s. 766.106, settlement offer or
  289  offer of judgment and at the same time such offer is provided to
  290  the claimant. A copy of any final agreement reached between the
  291  insurer and claimant shall also be provided to the insurer or
  292  his or her legal representative by certified mail, return
  293  receipt requested not more than 10 days after affecting such
  294  agreement.
  295         Section 10. Subsections (3), (4), and (5) of section
  296  766.102, Florida Statutes, are amended, subsection (12) of that
  297  section is renumbered as subsection (14), and new subsections
  298  (12) and (13) are added to that section, to read:
  299         766.102 Medical negligence; standards of recovery; expert
  300  witness.—
  301         (3)(a) As used in this subsection, the term:
  302         1. “Insurer” means any public or private insurer, including
  303  the Centers for Medicare and Medicaid Services.
  304         2. “Reimbursement determination” means an insurer’s
  305  determination of the amount that the insurer will reimburse a
  306  health care provider for health care services.
  307         3. “Reimbursement policies” means an insurer’s policies and
  308  procedures governing its decisions regarding health insurance
  309  coverage and method of payment and the data upon which such
  310  policies and procedures are based, including, but not limited
  311  to, data from national research groups and other patient safety
  312  data as defined in s. 766.1016.
  313         (b) The existence of a medical injury does shall not create
  314  any inference or presumption of negligence against a health care
  315  provider, and the claimant must maintain the burden of proving
  316  that an injury was proximately caused by a breach of the
  317  prevailing professional standard of care by the health care
  318  provider. Any records, policies, or testimony of an insurer’s
  319  reimbursement policies or reimbursement determination regarding
  320  the care provided to the plaintiff are not admissible as
  321  evidence in any medical negligence action. However, the
  322  discovery of the presence of a foreign body, such as a sponge,
  323  clamp, forceps, surgical needle, or other paraphernalia commonly
  324  used in surgical, examination, or diagnostic procedures, shall
  325  be prima facie evidence of negligence on the part of the health
  326  care provider.
  327         (4)(a) The Legislature is cognizant of the changing trends
  328  and techniques for the delivery of health care in this state and
  329  the discretion that is inherent in the diagnosis, care, and
  330  treatment of patients by different health care providers. The
  331  failure of a health care provider to order, perform, or
  332  administer supplemental diagnostic tests is shall not be
  333  actionable if the health care provider acted in good faith and
  334  with due regard for the prevailing professional standard of
  335  care.
  336         (b) In an action for damages based on death or personal
  337  injury which alleges that such death or injury resulted from the
  338  failure of a health care provider to order, perform, or
  339  administer supplemental diagnostic tests, the claimant has the
  340  burden of proving by clear and convincing evidence that the
  341  alleged actions of the health care provider represented a breach
  342  of the prevailing professional standard of care.
  343         (5) A person may not give expert testimony concerning the
  344  prevailing professional standard of care unless the that person
  345  is a licensed health care provider who holds an active and valid
  346  license and conducts a complete review of the pertinent medical
  347  records and meets the following criteria:
  348         (a) If the health care provider against whom or on whose
  349  behalf the testimony is offered is a specialist, the expert
  350  witness must:
  351         1. Specialize in the same specialty as the health care
  352  provider against whom or on whose behalf the testimony is
  353  offered; or specialize in a similar specialty that includes the
  354  evaluation, diagnosis, or treatment of the medical condition
  355  that is the subject of the claim and have prior experience
  356  treating similar patients; and
  357         2. Have devoted professional time during the 3 years
  358  immediately preceding the date of the occurrence that is the
  359  basis for the action to:
  360         a. The active clinical practice of, or consulting with
  361  respect to, the same or similar specialty that includes the
  362  evaluation, diagnosis, or treatment of the medical condition
  363  that is the subject of the claim and have prior experience
  364  treating similar patients;
  365         b. Instruction of students in an accredited health
  366  professional school or accredited residency or clinical research
  367  program in the same or similar specialty; or
  368         c. A clinical research program that is affiliated with an
  369  accredited health professional school or accredited residency or
  370  clinical research program in the same or similar specialty.
  371         (b) If the health care provider against whom or on whose
  372  behalf the testimony is offered is a general practitioner, the
  373  expert witness must have devoted professional time during the 5
  374  years immediately preceding the date of the occurrence that is
  375  the basis for the action to:
  376         1. The active clinical practice or consultation as a
  377  general practitioner;
  378         2. The instruction of students in an accredited health
  379  professional school or accredited residency program in the
  380  general practice of medicine; or
  381         3. A clinical research program that is affiliated with an
  382  accredited medical school or teaching hospital and that is in
  383  the general practice of medicine.
  384         (c) If the health care provider against whom or on whose
  385  behalf the testimony is offered is a health care provider other
  386  than a specialist or a general practitioner, the expert witness
  387  must have devoted professional time during the 3 years
  388  immediately preceding the date of the occurrence that is the
  389  basis for the action to:
  390         1. The active clinical practice of, or consulting with
  391  respect to, the same or similar health profession as the health
  392  care provider against whom or on whose behalf the testimony is
  393  offered;
  394         2. The instruction of students in an accredited health
  395  professional school or accredited residency program in the same
  396  or similar health profession in which the health care provider
  397  against whom or on whose behalf the testimony is offered; or
  398         3. A clinical research program that is affiliated with an
  399  accredited medical school or teaching hospital and that is in
  400  the same or similar health profession as the health care
  401  provider against whom or on whose behalf the testimony is
  402  offered.
  403         (12) If a physician licensed under chapter 458 or chapter
  404  459 or a dentist licensed under chapter 466 is the party against
  405  whom, or on whose behalf, expert testimony about the prevailing
  406  professional standard of care is offered, the expert witness
  407  must be licensed under chapter 458, chapter 459, or chapter 466
  408  or possess a valid expert witness certificate issued under s.
  409  458.3175, s. 459.0066, or s. 466.005.
  410         (13) A health care provider’s failure to comply with or
  411  breach of any federal requirement is not admissible as evidence
  412  in any medical negligence case in this state.
  413         Section 11. Paragraph (a) of subsection (2), subsection
  414  (5), and paragraph (b) of subsection (6) of section 766.106,
  415  Florida Statutes, are amended to read:
  416         766.106 Notice before filing action for medical negligence;
  417  presuit screening period; offers for admission of liability and
  418  for arbitration; informal discovery; review.—
  419         (2) PRESUIT NOTICE.—
  420         (a) After completion of presuit investigation pursuant to
  421  s. 766.203(2) and prior to filing a complaint for medical
  422  negligence, a claimant shall notify each prospective defendant
  423  by certified mail, return receipt requested, of intent to
  424  initiate litigation for medical negligence. Notice to each
  425  prospective defendant must include, if available, a list of all
  426  known health care providers seen by the claimant for the
  427  injuries complained of subsequent to the alleged act of
  428  negligence, all known health care providers during the 2-year
  429  period prior to the alleged act of negligence who treated or
  430  evaluated the claimant, and copies of all of the medical records
  431  relied upon by the expert in signing the affidavit, and the
  432  executed authorization form provided in s. 766.1065. The
  433  requirement of providing the list of known health care providers
  434  may not serve as grounds for imposing sanctions for failure to
  435  provide presuit discovery.
  436         (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
  437  discussion, written document, report, or other work product
  438  generated by the presuit screening process is not discoverable
  439  or admissible in any civil action for any purpose by the
  440  opposing party. All participants, including, but not limited to,
  441  physicians, investigators, witnesses, and employees or
  442  associates of the defendant, are immune from civil liability
  443  arising from participation in the presuit screening process.
  444  This subsection does not prevent a physician licensed under
  445  chapter 458 or chapter 459 or a dentist licensed under chapter
  446  466 who submits a verified written expert medical opinion from
  447  being subject to denial of a license or disciplinary action
  448  under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
  449  466.028(1)(ll).
  450         (6) INFORMAL DISCOVERY.—
  451         (b) Informal discovery may be used by a party to obtain
  452  unsworn statements, the production of documents or things, and
  453  physical and mental examinations, as follows:
  454         1. Unsworn statements.—Any party may require other parties
  455  to appear for the taking of an unsworn statement. Such
  456  statements may be used only for the purpose of presuit screening
  457  and are not discoverable or admissible in any civil action for
  458  any purpose by any party. A party desiring to take the unsworn
  459  statement of any party must give reasonable notice in writing to
  460  all parties. The notice must state the time and place for taking
  461  the statement and the name and address of the party to be
  462  examined. Unless otherwise impractical, the examination of any
  463  party must be done at the same time by all other parties. Any
  464  party may be represented by counsel at the taking of an unsworn
  465  statement. An unsworn statement may be recorded electronically,
  466  stenographically, or on videotape. The taking of unsworn
  467  statements is subject to the provisions of the Florida Rules of
  468  Civil Procedure and may be terminated for abuses.
  469         2. Documents or things.—Any party may request discovery of
  470  documents or things. The documents or things must be produced,
  471  at the expense of the requesting party, within 20 days after the
  472  date of receipt of the request. A party is required to produce
  473  discoverable documents or things within that party’s possession
  474  or control. Medical records shall be produced as provided in s.
  475  766.204.
  476         3. Physical and mental examinations.—A prospective
  477  defendant may require an injured claimant to appear for
  478  examination by an appropriate health care provider. The
  479  prospective defendant shall give reasonable notice in writing to
  480  all parties as to the time and place for examination. Unless
  481  otherwise impractical, a claimant is required to submit to only
  482  one examination on behalf of all potential defendants. The
  483  practicality of a single examination must be determined by the
  484  nature of the claimant’s condition, as it relates to the
  485  liability of each prospective defendant. Such examination report
  486  is available to the parties and their attorneys upon payment of
  487  the reasonable cost of reproduction and may be used only for the
  488  purpose of presuit screening. Otherwise, such examination report
  489  is confidential and exempt from the provisions of s. 119.07(1)
  490  and s. 24(a), Art. I of the State Constitution.
  491         4. Written questions.—Any party may request answers to
  492  written questions, the number of which may not exceed 30,
  493  including subparts. A response must be made within 20 days after
  494  receipt of the questions.
  495         5. Ex parte interviews of treating health care providers.—A
  496  prospective defendant or his or her legal representative may
  497  interview the claimant’s treating health care providers without
  498  notice to or the presence of the claimant or the claimant’s
  499  legal representative.
  500         6.5.Unsworn statements of treating health care providers
  501  Medical information release.—The claimant must execute a medical
  502  information release that allows A prospective defendant or his
  503  or her legal representative may also to take unsworn statements
  504  of the claimant’s treating health care providers physicians. The
  505  statements must be limited to those areas that are potentially
  506  relevant to the claim of personal injury or wrongful death.
  507  Subject to the procedural requirements of subparagraph 1., a
  508  prospective defendant may take unsworn statements from a
  509  claimant’s treating physicians. Reasonable notice and
  510  opportunity to be heard must be given to the claimant or the
  511  claimant’s legal representative before taking unsworn
  512  statements. The claimant or claimant’s legal representative has
  513  the right to attend the taking of such unsworn statements.
  514         Section 12. Section 766.1065, Florida Statutes, is created
  515  to read:
  516         766.1065 Authorization for release of protected health
  517  information.—
  518         (1) Presuit notice of intent to initiate litigation for
  519  medical negligence under s. 766.106(2) must be accompanied by an
  520  authorization for release of protected health information in the
  521  form specified by this section, authorizing the disclosure of
  522  protected health information that is potentially relevant to the
  523  claim of personal injury or wrongful death. The presuit notice
  524  is void if this authorization does not accompany the presuit
  525  notice and other materials required by s. 766.106(2).
  526         (2) If the authorization required by this section is
  527  revoked, the presuit notice under s. 766.106(2) is deemed
  528  retroactively void from the date of issuance, and any tolling
  529  effect that the presuit notice may have had on any applicable
  530  statute-of-limitations period is retroactively rendered void.
  531         (3) The authorization required by this section shall be in
  532  the following form and shall be construed in accordance with the
  533  “Standards for Privacy of Individually Identifiable Health
  534  Information” in 45 C.F.R. parts 160 and 164:
  535  
  536      AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION    
  537  
  538         A. I,_(...Name of patient or authorized
  539         representative...) [hereinafter “Patient”], authorize
  540         that (...Name of health care provider to whom the
  541         presuit notice is directed...) and his/her/its
  542         insurer(s), self-insurer(s), and attorney(s) may
  543         obtain and disclose (within the parameters set out
  544         below) the protected health information described
  545         below for the following specific purposes:
  546         1. Facilitating the investigation and evaluation
  547         of the medical negligence claim described in the
  548         accompanying presuit notice; or
  549         2. Defending against any litigation arising out
  550         of the medical negligence claim made on the basis of
  551         the accompanying presuit notice.
  552         B. The health information obtained, used, or
  553         disclosed extends to, and includes, the verbal as well
  554         as the written and is described as follows:
  555         1. The health information in the custody of the
  556         following health care providers who have examined,
  557         evaluated, or treated the Patient in connection with
  558         injuries complained of after the alleged act of
  559         negligence: (List the name and current address of all
  560         health care providers). This authorization extends to
  561         any additional health care providers that may in the
  562         future evaluate, examine, or treat the Patient for the
  563         injuries complained of.
  564         2. The health information in the custody of the
  565         following health care providers who have examined,
  566         evaluated, or treated the Patient during a period
  567         commencing 2 years before the incident that is the
  568         basis of the accompanying presuit notice.
  569  
  570         (List the name and current address of such health care
  571         providers, if applicable.)
  572  
  573         C. This authorization does not apply to the
  574         following list of health care providers possessing
  575         health care information about the Patient because the
  576         Patient certifies that such health care information is
  577         not potentially relevant to the claim of personal
  578         injury or wrongful death that is the basis of the
  579         accompanying presuit notice.
  580  
  581         (List the name of each health care provider to whom
  582         this authorization does not apply and the inclusive
  583         dates of examination, evaluation, or treatment to be
  584         withheld from disclosure. If none, specify “none.”)
  585  
  586         D. The persons or class of persons to whom the
  587         Patient authorizes such health information to be
  588         disclosed or by whom such health information is to be
  589         used:
  590         1. Any health care provider providing care or
  591         treatment for the Patient.
  592         2. Any liability insurer or self-insurer
  593         providing liability insurance coverage, self
  594         insurance, or defense to any health care provider to
  595         whom presuit notice is given regarding the care and
  596         treatment of the Patient.
  597         3. Any consulting or testifying expert employed
  598         by or on behalf of (name of health care provider to
  599         whom presuit notice was given), his/her/its
  600         insurer(s), self-insurer(s), or attorney(s) regarding
  601         to the matter of the presuit notice accompanying this
  602         authorization.
  603         4. Any attorney (including secretarial, clerical,
  604         or paralegal staff) employed by or on behalf of (name
  605         of health care provider to whom presuit notice was
  606         given) regarding the matter of the presuit notice
  607         accompanying this authorization.
  608         5. Any trier of the law or facts relating to any
  609         suit filed seeking damages arising out of the medical
  610         care or treatment of the Patient.
  611         E. This authorization expires upon resolution of
  612         the claim or at the conclusion of any litigation
  613         instituted in connection with the matter of the
  614         presuit notice accompanying this authorization,
  615         whichever occurs first.
  616         F. The Patient understands that, without
  617         exception, the Patient has the right to revoke this
  618         authorization in writing. The Patient further
  619         understands that the consequence of any such
  620         revocation is that the presuit notice under s.
  621         766.106(2), Florida Statutes, is deemed retroactively
  622         void from the date of issuance, and any tolling effect
  623         that the presuit notice may have had on any applicable
  624         statute-of-limitations period is retroactively
  625         rendered void.
  626         G. The Patient understands that signing this
  627         authorization is not a condition for continued
  628         treatment, payment, enrollment, or eligibility for
  629         health plan benefits.
  630         H. The Patient understands that information used
  631         or disclosed under this authorization may be subject
  632         to additional disclosure by the recipient and may not
  633         be protected by federal HIPAA privacy regulations.
  634  
  635         Signature of Patient/Representative: ....
  636         Date: ....
  637         Name of Patient/Representative: ....
  638         Description of Representative’s Authority: ....
  639         Section 13. Subsection (2) of section 766.206, Florida
  640  Statutes, is amended to read:
  641         766.206 Presuit investigation of medical negligence claims
  642  and defenses by court.—
  643         (2) If the court finds that the notice of intent to
  644  initiate litigation mailed by the claimant does is not comply in
  645  compliance with the reasonable investigation requirements of ss.
  646  766.201-766.212, including a review of the claim and a verified
  647  written medical expert opinion by an expert witness as defined
  648  in s. 766.202, or that the authorization accompanying the notice
  649  of intent required under s. 766.1065 is not completed in good
  650  faith by the claimant, the court shall dismiss the claim, and
  651  the person who mailed such notice of intent, whether the
  652  claimant or the claimant’s attorney, shall be personally liable
  653  for all attorney’s fees and costs incurred during the
  654  investigation and evaluation of the claim, including the
  655  reasonable attorney’s fees and costs of the defendant or the
  656  defendant’s insurer.
  657         Section 14. Section 768.0981, Florida Statutes, is amended
  658  to read:
  659         768.0981 Limitation on actions against insurers, prepaid
  660  limited health service organizations, health maintenance
  661  organizations, hospitals, or prepaid health clinics.—An entity
  662  licensed or certified under chapter 395, chapter 624, chapter
  663  636, or chapter 641 is shall not be liable for the medical
  664  negligence of a health care provider with whom the licensed or
  665  certified entity has entered into a contract, other than an
  666  employee of such licensed or certified entity, unless the
  667  licensed or certified entity expressly directs or exercises
  668  actual control over the specific conduct that caused injury.
  669         Section 15. This act shall take effect July 1, 2011.
  670  
  671  ================= T I T L E  A M E N D M E N T ================
  672         And the title is amended as follows:
  673         Delete everything before the enacting clause
  674  and insert:
  675                        A bill to be entitled                      
  676         An act relating to medical malpractice; creating ss.
  677         458.3175, 459.0066, and 466.005, F.S.; requiring the
  678         Department of Health to issue expert witness
  679         certificates to certain physicians and dentists
  680         licensed outside of the state; providing application
  681         and certification requirements; establishing
  682         application fees; providing for the validity and use
  683         of certifications; exempting physicians and dentists
  684         issued certifications from certain licensure and fee
  685         requirements; amending ss. 458.331, 459.015, and
  686         466.028, F.S.; providing additional acts that
  687         constitute grounds for denial of a license or
  688         disciplinary action to which penalties apply;
  689         providing construction with respect to the doctrine of
  690         incorporation by reference; amending ss. 458.351 and
  691         459.026, F.S.; requiring the Board of Medicine and the
  692         Board of Osteopathic Medicine to adopt within a
  693         specified period certain patient forms specifying
  694         cataract surgery risks; specifying that an incident
  695         resulting from risks disclosed in the patient form is
  696         not an adverse incident; providing for the execution
  697         and admissibility of the patient forms in civil and
  698         administrative proceedings; creating a rebuttable
  699         presumption that a physician disclosed cataract
  700         surgery risks if the patient form is executed;
  701         amending s. 627.4147, F.S.; deleting a requirement
  702         that medical malpractice insurance contracts contain a
  703         clause authorizing the insurer to make and conclude
  704         certain offers within policy limits over the insured’s
  705         veto; amending s. 766.102, F.S.; defining terms;
  706         providing that certain insurance information is not
  707         admissible as evidence in medical negligence actions;
  708         establishing the burden of proof that a claimant must
  709         meet in certain damage claims against health care
  710         providers based on death or personal injury; requiring
  711         that certain expert witnesses who provide certain
  712         expert testimony meet certain licensure or
  713         certification requirements; excluding a health care
  714         provider’s failure to comply with or breach of federal
  715         requirements from evidence in medical negligence cases
  716         in the state; amending s. 766.106, F.S.; requiring
  717         claimants for medical malpractice to execute an
  718         authorization form; allowing prospective medical
  719         malpractice defendants to interview a claimant’s
  720         treating health care provider without notice to or the
  721         presence of the claimant or the claimant’s legal
  722         representative; authorizing prospective defendants to
  723         take unsworn statements of a claimant’s health care
  724         provider; creating s. 766.1065, F.S.; requiring that
  725         presuit notice for medical negligence claims be
  726         accompanied by an authorization for release of
  727         protected health information; providing requirements
  728         for the form of such authorization; amending s.
  729         766.206, F.S.; requiring dismissal of a medical
  730         malpractice claim if such authorization is not
  731         completed in good faith; amending s. 768.0981, F.S.;
  732         limiting the liability of hospitals related to certain
  733         medical negligence claims; providing an effective
  734         date.