Florida Senate - 2011                                    SB 1676
       By Senator Thrasher
       8-00681A-11                                           20111676__
    1                        A bill to be entitled                      
    2         An act relating to sovereign immunity; providing
    3         legislative findings and intent; amending s. 766.1115,
    4         F.S.; providing that specified provisions relating to
    5         sovereign immunity for health care providers do not
    6         apply to certain affiliation agreements or contracts
    7         to provide certain comprehensive health care services;
    8         amending s. 768.28, F.S.; expanding the definition of
    9         the term “officer, employee, or agent” for purposes of
   10         sovereign immunity to include certain health care
   11         providers; providing that certain colleges and
   12         universities that own or operate a medical school or
   13         any of its employees or agents that have agreed in an
   14         affiliation agreement to provide patient services as
   15         agents of a teaching hospital that is owned or
   16         operated by a governmental entity having health care
   17         responsibilities, or a not-for-profit entity that
   18         operates such facilities as an agent of that
   19         governmental entity under a lease, are agents of the
   20         state and are immune from certain liability for torts;
   21         requiring the contract to provide for indemnification;
   22         providing definitions; requiring that each patient, or
   23         the patient’s legal representative, receive written
   24         notice regarding the patient’s exclusive remedy for
   25         injury or damage suffered; providing that an employee
   26         providing patient services is not an employee or agent
   27         of the state for purposes of workers’ compensation;
   28         providing for application; providing an effective
   29         date.
   31  Be It Enacted by the Legislature of the State of Florida:
   33         Section 1. (1) The Legislature finds that access to
   34  quality, affordable health care for residents of this state is a
   35  necessary goal for the state and that public teaching hospitals
   36  play an essential role in providing access to comprehensive
   37  health care services.
   38         (2) The Legislature finds that this state:
   39         (a) Has the largest and fastest growing percentage of
   40  citizens over the age of 65, who typically have their health
   41  care needs increase as their age increases.
   42         (b) Ranks fifth highest in the nation in the number of
   43  citizens who are uninsured.
   44         (c) Ranks eighth highest in the nation in active physicians
   45  age 60 or older, with 25 percent of this state’s physicians over
   46  the age of 65.
   47         (d) Ranks third highest in the nation in the number of
   48  active physicians who are international medical graduates,
   49  creating a dependency on physicians educated and trained in
   50  other states and countries.
   51         (e) Has been impacted by medical malpractice, liability,
   52  and reimbursement issues.
   53         (3) The Legislature finds that the rapidly growing
   54  population and changing demographics of this state make it
   55  imperative that students continue to choose this state as the
   56  place to receive their medical education and practice medicine.
   57         (4) The Legislature finds that graduate medical education
   58  is the process of comprehensive specialty training that a
   59  medical school graduate undertakes to develop and refine skills.
   60  Residents work under the direct supervision of medical faculty,
   61  who provide guidance, training, and oversight, serving as role
   62  models to young physicians. The vast majority of this care takes
   63  place in large teaching hospitals, which serve as “safety nets”
   64  to many indigent and underserved patients who otherwise might
   65  not receive help. Resident training, including the supervision
   66  component, is an important part of ensuring access to care by
   67  residents and medical doctors in training who render appropriate
   68  and quality care. Medical faculty provide the vital link between
   69  access to quality care and balancing the demands of educating
   70  and training residents. Physicians who assume this role are
   71  often juggling the demands of patient care, teaching, research,
   72  and policy and budgetary issues related to the programs they
   73  administer.
   74         (5) The Legislature finds that access to quality health
   75  care at public teaching hospitals is enhanced when public
   76  teaching hospitals affiliate and coordinate their common
   77  endeavors with medical schools. The existing definition of a
   78  teaching hospital in s. 408.07, Florida Statutes, contemplates
   79  such affiliations between teaching hospitals and accredited
   80  medical schools in this state. These affiliations are an
   81  integral part of the delivery of more efficient and economical
   82  health care services to patients in public teaching hospitals by
   83  offering a single, high quality of care to all patients
   84  regardless of income. These affiliations also provide quality
   85  graduate medical education programs to resident physicians who
   86  provide patient services at public teaching hospitals. These
   87  affiliations ensure continued access to quality, comprehensive
   88  health care services for residents of this state and, therefore,
   89  should be encouraged in order to maintain and expand such
   90  services.
   91         (6)(a) The Legislature finds that s. 381.0403, Florida
   92  Statutes, “The Community Hospital Education Act” (CHEP),
   93  established programs “intended to provide additional outpatient
   94  and inpatient services, a continuing supply of highly trained
   95  physicians, and graduate medical education.” Section
   96  381.0403(9), Florida Statutes, before its amendment by chapter
   97  2010-161, Laws of Florida, required the Executive Office of the
   98  Governor, the Department of Health, and the Agency for Health
   99  Care Administration to collaborate in the establishment of a
  100  committee to produce an annual report on graduate medical
  101  education which addressed the role of residents and medical
  102  faculty in the provision of health care; the relationship of
  103  graduate medical education to the state’s physician workforce;
  104  the costs of training medical residents for hospitals, medical
  105  schools, teaching hospitals, including all hospital-medical
  106  affiliations, practice plans at all of the medical schools, and
  107  municipalities; the availability and adequacy of all sources of
  108  revenue to support graduate medical education and recommended
  109  alternative sources of funding for graduate medical education;
  110  and the use of state and federal funds for graduate medical
  111  education by hospitals receiving such funds.
  112         (b) The Graduate Medical Education Committee submitted
  113  Reports in 2009 and 2010 and, among other findings, determined
  114  that graduate medical education training has a direct impact on
  115  the quality and adequacy of the state’s physician specialty and
  116  subspecialty workforce and the geographic distribution of
  117  physicians; the support and expansion of residency programs in
  118  critical need areas could result in more primary care
  119  practitioners and specialists practicing in this state; medical
  120  residents are more likely to practice in the state where they
  121  completed their graduate medical education training than where
  122  they went to medical school; quality, prestigious programs
  123  attract the best students, who stay as practicing physicians;
  124  medical residents act as “safety nets” to care for indigent,
  125  uninsured, and underserved patients in this state; supporting
  126  residency programs helps ensure this state’s ability to train
  127  and retain the caliber of medical doctors its citizens and
  128  visitors deserve; and ongoing strategic planning for the
  129  expanded capacity of graduate medical education programs is
  130  crucial in order for the state to meet its health care needs.
  131  However, the January 2010 Annual Report of Graduate Medical
  132  Education in Florida by the Graduate Medical Education Committee
  133  indicated that the Association of American Medical Colleges
  134  ranked Florida 43rd nationally in the number of resident
  135  physicians in training per 100,000 population.
  136         (7) The Legislature finds that ss. 28 and 29, chapter 2010
  137  161, Laws of Florida, which amended ss. 381.0403 and 381.4018,
  138  Florida Statutes, respectively, modified the existing law that
  139  established the responsibility of the Department of Health for
  140  physician workforce development and created a Physician
  141  Workforce Advisory Council and a graduate medical education
  142  innovation program. The legislative intent in s. 381.4018,
  143  Florida Statutes, recognizes that “physician workforce planning
  144  is an essential component of ensuring that there is an adequate
  145  and appropriate supply of well-trained physicians to meet this
  146  state’s future health care service needs as the general
  147  population and elderly population of the state increase.”
  148  According to the Council on Graduate Medical Education’s
  149  sixteenth report entitled “Physician Workforce Policy Guidelines
  150  for the United States, 2000-2010 (January 2005),” this country
  151  could see shortages as high as 85,000 physicians by 2020.
  152         (8) The Legislature finds, based upon the 2008 Florida
  153  Physician Workforce Annual Report from the Department of Health,
  154  that although the American Association of Medical Colleges
  155  reports that this state ranks 15th nationally in the number of
  156  active physicians per 100,000 population, these national-level
  157  data do not take into account many factors that determine the
  158  number of actively practicing physicians. Rather, additional
  159  concerns impact this state’s physician workforce, including the
  160  current practice environment for physicians. These concerns
  161  include malpractice insurance and liability costs, reimbursement
  162  rates, administrative burdens, and the impact of Amendment 8,
  163  approved in November 2004, which created s. 26, Article X of the
  164  State Constitution, which prohibits persons found to have
  165  committed three or more incidents of medical malpractice from
  166  being licensed by this state to provide health care services as
  167  a medical doctor. As the department concluded, these service
  168  delivery concerns may hinder the recruitment of doctors to this
  169  state based on the real or perceived influence of the severity
  170  of the medical liability climate in this state.
  171         (9) The Legislature finds that when medical schools
  172  affiliate or enter into contracts with public teaching hospitals
  173  to provide patient services, but medical schools and their
  174  employees do not have the same level of protection against
  175  liability claims as public teaching hospitals and their public
  176  employees when providing the same patient services to the same
  177  patients, the exposure of these medical schools and their
  178  employees to claims arising out of alleged medical malpractice
  179  and other allegedly negligent acts is increased
  180  disproportionately. With the recent growth in the availability
  181  of state-established medical schools and medical education
  182  programs and ongoing efforts to support, strengthen, and
  183  increase the available residency training positions and medical
  184  faculty in both existing and newly designated teaching
  185  hospitals, this exposure and the consequent disparity will
  186  continue to increase. This will add to the current crisis with
  187  respect to the physician workforce in the state, which will be
  188  alleviated only through legislative relief.
  189         (10) The Legislature finds that the high cost of litigation
  190  and unequal liability exposure have adversely impacted the
  191  ability of some medical schools to provide or permit their
  192  employees to provide patient services to patients in public
  193  teaching hospitals. If corrective action is not taken, this
  194  health care crisis will lead to the reduction of patient
  195  services in public teaching hospitals. In addition, it will
  196  reduce the ability of public teaching hospitals to further
  197  support their public mission through the admission of patients
  198  to their teaching services and reduce the ability of public
  199  teaching hospitals to act as teaching sites for medical students
  200  from private and public medical schools. It will also contribute
  201  to a reduction in the high-quality medical care and training
  202  provided through public teaching hospitals that are affiliated
  203  with accredited medical schools as well as a reduction in
  204  essential research, program development, and infrastructure
  205  improvements in public teaching hospitals.
  206         (11) The Legislature finds that the public will benefit
  207  from corrective action to address the foregoing concerns.
  208  Designating medical schools and their employees as agents of the
  209  state who are subject to the protections of sovereign immunity
  210  when providing patient services in public teaching hospitals
  211  pursuant to an affiliation agreement or other written contract
  212  will maintain and increase that public benefit.
  213         (12) The Legislature finds that making high-quality health
  214  care available to the residents of this state is an overwhelming
  215  public necessity.
  216         (13) The Legislature finds that ensuring that medical
  217  schools and their employees are able continue to practice, treat
  218  patients, supervise medical and graduate education, engage in
  219  research, and provide administrative support and services in
  220  public teaching hospitals is an overwhelming public necessity.
  221         (14) It is the intent of the Legislature that medical
  222  schools that provide or permit their employees to provide
  223  patient services in public teaching hospitals pursuant to an
  224  affiliation agreement or other contract be subject to sovereign
  225  immunity protections under s. 768.28, Florida Statutes, in the
  226  same manner and to the same extent as the state, its agencies,
  227  and political subdivisions.
  228         (15) It is the intent of the Legislature that employees of
  229  medical schools who provide patient services in a public
  230  teaching hospital and the employees of public teaching hospitals
  231  be immune from lawsuits in the same manner and to the same
  232  extent as employees and agents of the state, its agencies, and
  233  political subdivisions and that they not be held personally
  234  liable in tort or named as a party defendant in an action while
  235  performing patient services, except as provided in s.
  236  768.28(9)(a), Florida Statutes.
  237         (16) The Legislature finds that there is an overwhelming
  238  public necessity for this legislative action and that there is
  239  no alternative method of meeting such public necessity.
  240         Section 2. Subsection (11) of section 766.1115, Florida
  241  Statutes, is amended to read:
  242         766.1115 Health care providers; creation of agency
  243  relationship with governmental contractors.—
  244         (11) APPLICABILITY.—This section applies to incidents
  245  occurring on or after April 17, 1992. This section does not
  246  apply to any health care contract entered into by the Department
  247  of Corrections which is subject to s. 768.28(10)(a). This
  248  section does not apply to any affiliation agreement or other
  249  contract which is subject to s. 768.28(10)(f). Nothing in this
  250  section in any way reduces or limits the rights of the state or
  251  any of its agencies or subdivisions to any benefit currently
  252  provided under s. 768.28.
  253         Section 3. Paragraph (b) of subsection (9) of section
  254  768.28, Florida Statutes, is amended, and paragraph (f) is added
  255  to subsection (10) of that section, to read:
  256         768.28 Waiver of sovereign immunity in tort actions;
  257  recovery limits; limitation on attorney fees; statute of
  258  limitations; exclusions; indemnification; risk management
  259  programs.—
  260         (9)
  261         (b) As used in this subsection, the term:
  262         1. “Employee” includes any volunteer firefighter.
  263         2. “Officer, employee, or agent” includes, but is not
  264  limited to, any health care provider when providing services
  265  pursuant to s. 766.1115;, any member of the Florida Health
  266  Services Corps, as defined in s. 381.0302, who provides
  267  uncompensated care to medically indigent persons referred by the
  268  Department of Health; a Florida not-for-profit college,
  269  university, or medical school and the employees or agents of
  270  such college, university, or medical school pursuant to
  271  paragraph (10)(f);, and any public defender or her or his
  272  employee or agent, including, among others, an assistant public
  273  defender and an investigator.
  274         (10)
  275         (f)1. For purposes of this section, any Florida not-for
  276  profit college or university that owns or operates an accredited
  277  medical school or any of its employees or agents that have
  278  agreed in an affiliation agreement or other contract to provide
  279  patient services as agents of a teaching hospital, as defined in
  280  s. 408.07(45), which is owned or operated by the state, a
  281  county, a municipality, a public health trust, a special taxing
  282  district, any other governmental entity having health care
  283  responsibilities, or a not-for-profit entity that operates such
  284  facilities as an agent of that governmental entity under a lease
  285  or other contract, are agents of the state and are immune from
  286  liability for torts in the same manner and to the same extent as
  287  a teaching hospital and its governmental owner or operator while
  288  acting within the scope of and pursuant to guidelines
  289  established in the contract.
  290         2. The contract shall provide, to the extent permitted by
  291  law, for the indemnification of the state by the agent for any
  292  liability incurred up to the limits set forth in this chapter to
  293  the extent caused by the negligence of the college, university,
  294  or medical school or its employees or agents. As used in this
  295  paragraph, the term “patient services” means any comprehensive
  296  health care services, as defined in s. 641.19(4); the training
  297  or supervision of medical students, interns, residents, or
  298  fellows; access to or participation in medical research
  299  protocols; or any related executive, managerial, or
  300  administrative services provided according to an affiliation
  301  agreement or other contract with the teaching hospital or its
  302  governmental owner or operator. As used in this paragraph, the
  303  term, “employee or agent of a college, university, or medical
  304  school” means, but is not limited to, an officer, a member of
  305  the faculty, a health care practitioner or licensee defined in
  306  s. 456.001, or any other person who is directly or vicariously
  307  liable. Such employee or agent of a college, university, or its
  308  medical school is not personally liable in tort and may not be
  309  named as a party defendant in any action arising from the
  310  provision of any such patient services, except as provided in
  311  paragraph (9)(a).
  312         3. The public teaching hospital, the medical school, or its
  313  employees or agents must provide written notice to each patient,
  314  or the patient’s legal representative, the receipt of which must
  315  be acknowledged in writing, that the medical school and its
  316  employees are agents of the state and that the exclusive remedy
  317  for injury or damage suffered as a result of any act or omission
  318  of the public teaching hospital, the medical school, or an
  319  employee or agent of the medical school while acting within the
  320  scope of her or his duties pursuant to the affiliation agreement
  321  or other contract is by commencement of an action under this
  322  section.
  323         4. This paragraph does not make an employee providing
  324  patient services an employee or agent of the state for purposes
  325  of chapter 440.
  326         Section 4. This act shall take effect upon becoming a law,
  327  and applies to all claims accruing on or after that date.