Florida Senate - 2011                          SENATOR AMENDMENT
       Bill No. CS for SB 1676
                                Barcode 271574                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/2R         .                                
             05/03/2011 12:50 PM       .                                

       Senator Thrasher moved the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. (1) The Legislature finds that:
    6         (a) Access to high-quality, comprehensive, and affordable
    7  health care for all persons in this state is a necessary state
    8  goal and teaching hospitals play an essential role in providing
    9  that access.
   10         (b)Graduate medical education, provided by nonprofit
   11  independent colleges and universities located and chartered in
   12  this state which own or operate medical schools, helps provide
   13  the comprehensive specialty training needed by medical school
   14  graduates to develop and refine the skills essential to the
   15  provision of high-quality health care for state residents. Much
   16  of that education and training is provided in teaching hospitals
   17  under the direct supervision of medical faculty who provide
   18  guidance, training, and oversight and serve as role models to
   19  their students.
   20         (c)A large proportion of medical care is provided in
   21  teaching hospitals that serve as safety nets for many indigent
   22  and underserved patients who otherwise might not receive the
   23  medical help they need. Resident physician training that takes
   24  place in such hospitals provides much of the care provided to
   25  this population. Medical faculty, supervising such training and
   26  care, are a vital link between educating and training resident
   27  physicians and ensuring the provision of quality care for
   28  indigent and underserved residents. Physicians who assume this
   29  role are often called upon to juggle the demands of patient
   30  care, teaching, health policy, and budgetary issues related to
   31  the programs they administer.
   32         (d) While teaching hospitals are afforded state sovereign
   33  immunity protections under s. 768.28, Florida Statutes, the
   34  nonprofit independent colleges and universities located and
   35  chartered in this state which own or operate medical schools and
   36  which enter into affiliation agreements or contracts with the
   37  teaching hospitals to provide patient services are not afforded
   38  the same sovereign immunity protections. The employees or agents
   39  of such nonprofit independent colleges and universities,
   40  therefore, do not have the same level of protection against
   41  liability claims as the employees and agents of teaching
   42  hospitals providing the same patient services to the same
   43  patients.
   44         (e) Nonprofit colleges and universities located and
   45  chartered in this state which own or operate medical schools and
   46  their employees and agents, which are not covered by the state’s
   47  sovereign immunity protections, are disproportionately affected
   48  by claims arising out of alleged medical malpractice and other
   49  allegedly negligent acts. Given the recent growth in medical
   50  schools and medical education programs and ongoing efforts to
   51  support, strengthen, and increase physician residency training
   52  positions and medical faculty in both existing and newly
   53  designated teaching hospitals, this exposure and the consequent
   54  disparity in liability exposure will continue to increase. The
   55  vulnerability of these colleges and universities to claims of
   56  medical malpractice will only add to the current physician
   57  workforce crisis in this state and can be alleviated only
   58  through legislative action.
   59         (f)Ensuring that the employees and agents of nonprofit
   60  independent colleges and universities located and chartered in
   61  this state which own or operate medical schools are able to
   62  continue to treat patients, provide graduate medical education,
   63  supervise medical students, and provide administrative support
   64  and services in teaching hospitals is an overwhelming public
   65  necessity.
   66         (2)The Legislature intends that:
   67         (a)Employees and agents of nonprofit independent colleges
   68  and universities located and chartered in this state which own
   69  or operate medical schools who provide patient services as
   70  agents of a teaching hospital be immune from lawsuits in the
   71  same manner and to the same extent as employees and agents of
   72  teaching hospitals in this state under existing law, and that
   73  such colleges and universities and their employees and agents
   74  not be held personally liable in tort or named as a party
   75  defendant in an action while providing patient services in a
   76  teaching hospital, unless such services are provided in bad
   77  faith, with malicious purpose, or in a manner exhibiting wanton
   78  and willful disregard of human rights, safety, or property.
   79         (b)Nonprofit independent private colleges and universities
   80  located and chartered in this state which own or operate medical
   81  schools and which permit their employees or agents to provide
   82  patient services in teaching hospitals pursuant to an
   83  affiliation agreement or other contract be afforded sovereign
   84  immunity protections under s. 768.28, Florida Statutes.
   85         (3) The Legislature declares that there is an overwhelming
   86  public necessity for extending the state’s sovereign immunity to
   87  nonprofit independent colleges and universities located and
   88  chartered in this state which own or operate medical schools and
   89  provide patient services in teaching hospitals, and to their
   90  employees and agents, and that there is no alternative method of
   91  meeting such public necessity.
   92         (4) The terms “employee or agent,” “patient services,” and
   93  “teaching hospital” as used in this section have the same
   94  meaning as defined in s. 768.28, Florida Statutes, as amended by
   95  this act.
   96         Section 2. Subsection (11) of section 766.1115, Florida
   97  Statutes, is amended to read:
   98         766.1115 Health care providers; creation of agency
   99  relationship with governmental contractors.—
  100         (11) APPLICABILITY.—This section applies to incidents
  101  occurring on or after April 17, 1992. This section does not:
  102         (a) Apply to any health care contract entered into by the
  103  Department of Corrections which is subject to s. 768.28(10)(a).
  104         (b) Apply to any affiliation agreement or other contract
  105  that is subject to s. 768.28(10)(f). Nothing in this section in
  106  any way reduces or limits
  107         (c) Reduce or limit the rights of the state or any of its
  108  agencies or subdivisions to any benefit currently provided under
  109  s. 768.28.
  110         Section 3. Paragraph (b) of subsection (9) of section
  111  768.28, Florida Statutes, is amended, and paragraph (f) is added
  112  to subsection (10) of that section, to read:
  113         768.28 Waiver of sovereign immunity in tort actions;
  114  recovery limits; limitation on attorney fees; statute of
  115  limitations; exclusions; indemnification; risk management
  116  programs.—
  117         (9)
  118         (b) As used in this subsection, the term:
  119         1. “Employee” includes any volunteer firefighter.
  120         2. “Officer, employee, or agent” includes, but is not
  121  limited to, any health care provider when providing services
  122  pursuant to s. 766.1115;, any member of the Florida Health
  123  Services Corps, as defined in s. 381.0302, who provides
  124  uncompensated care to medically indigent persons referred by the
  125  Department of Health; any nonprofit independent college or
  126  university located and chartered in this state which owns or
  127  operates an accredited medical school, and its employees or
  128  agents, when providing patient services pursuant to paragraph
  129  (10)(f);, and any public defender or her or his employee or
  130  agent, including, among others, an assistant public defender and
  131  an investigator.
  132         (10)
  133         (f)For purposes of this section, any nonprofit independent
  134  college or university located and chartered in this state which
  135  owns or operates an accredited medical school, or any of its
  136  employees or agents, and which has agreed in an affiliation
  137  agreement or other contract to provide, or permit its employees
  138  or agents to provide, patient services as agents of a teaching
  139  hospital, is considered an agent of the teaching hospital while
  140  acting within the scope of and pursuant to guidelines
  141  established in the affiliation agreement or other contract. To
  142  the extent allowed by law, the contract must provide for the
  143  indemnification of the teaching hospital, up to the limits set
  144  out in this chapter, by the agent for any liability incurred
  145  which was caused by the negligence of the college or university
  146  or its employees or agents. The contract must also provide that
  147  those limited portions of the college, university, or medical
  148  school which are directly providing services pursuant to the
  149  contract and which are considered an agent of the teaching
  150  hospital for purposes of this section are deemed to be acting on
  151  behalf of a public agency as defined in s. 119.011(2).
  152         1.For purposes of this paragraph, the term:
  153         a.“Employee or agent” means an officer, employee, agent,
  154  or servant of a nonprofit independent college or university
  155  located and chartered in this state which owns or operates an
  156  accredited medical school, including, but not limited to, the
  157  faculty of the medical school, any health care practitioner or
  158  licensee as defined in s. 456.001 for which the college or
  159  university is vicariously liable, and the staff or
  160  administrators of the medical school.
  161         b.“Patient services” mean:
  162         (I)Comprehensive health care services as defined in s.
  163  641.19, including any related administrative service, provided
  164  to patients in a teaching hospital;
  165         (II)Training and supervision of interns, residents, and
  166  fellows providing patient services in a teaching hospital; or
  167         (III)Training and supervision of medical students in a
  168  teaching hospital.
  169         c. “Teaching hospital” means a teaching hospital as defined
  170  in s. 408.07 which is owned or operated by the state, a county
  171  or municipality, a public health trust, a special taxing
  172  district, a governmental entity having health care
  173  responsibilities, or a not-for-profit entity that operates such
  174  facility as an agent of the state, or a political subdivision of
  175  the state, under a lease or other contract.
  176         2.The teaching hospital or the medical school, or its
  177  employees or agents, must provide notice to each patient, or the
  178  patient’s legal representative, that the college or university
  179  that owns or operates the medical school and the employees or
  180  agents of that college or university are acting as agents of the
  181  teaching hospital and that the exclusive remedy for injury or
  182  damage suffered as the result of any act or omission of the
  183  teaching hospital, the college or university that owns or
  184  operates the medical school, or the employees or agents of the
  185  college or university, while acting within the scope of duties
  186  pursuant to the affiliation agreement or other contract with a
  187  teaching hospital, is by commencement of an action pursuant to
  188  the provisions of this section. This notice requirement may be
  189  met by posting the notice in a place conspicuous to all persons.
  190         3.This paragraph does not designate any employee providing
  191  contracted patient services in a teaching hospital as an
  192  employee or agent of the state for purposes of chapter 440.
  193         Section 4. This act shall take effect upon becoming a law,
  194  and applies to all claims accruing on or after that date.
  196  ================= T I T L E  A M E N D M E N T ================
  197         And the title is amended as follows:
  198         Delete everything before the enacting clause
  199  and insert:
  200                        A bill to be entitled                      
  201         An act relating to sovereign immunity; providing
  202         legislative findings and intent; amending s. 766.1115,
  203         F.S.; providing that specified provisions relating to
  204         sovereign immunity for health care providers do not
  205         apply to certain affiliation agreements or contracts
  206         to provide certain comprehensive health care services;
  207         amending s. 768.28, F.S.; expanding the definition of
  208         the term “officer, employee, or agent” for purposes of
  209         provisions expanding sovereign immunity to include
  210         certain colleges and universities when providing
  211         patient services; providing that certain colleges and
  212         universities that own or operate a medical school or
  213         any of its employees or agents providing patient
  214         services pursuant to a contract with a teaching
  215         hospital are agents of the teaching hospital and are
  216         immune from certain liability for torts; requiring the
  217         contract to provide for indemnification; providing
  218         that the portion of the not-for-profit entity which is
  219         considered to be an agent of the teaching hospital for
  220         purposes of extension of the waiver of sovereign
  221         immunity is deemed to be acting on behalf of a public
  222         agency for purposes of public-records laws; providing
  223         definitions; requiring that each patient, or the
  224         patient’s legal representative, receive notice
  225         regarding the patient’s exclusive remedy for injury or
  226         damage suffered; providing that an employee providing
  227         patient services is not an employee or agent of the
  228         state for purposes of workers’ compensation; providing
  229         for application; providing an effective date.