Florida Senate - 2011                             CS for SB 1676
       By the Committee on Judiciary; and Senator Thrasher
       590-04476-11                                          20111676c1
    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 that the portion of the not-for-profit
   23         entity deemed to be an agent of the state for purpose
   24         of indemnity is also an agency of the state for
   25         purpose of public-records laws; providing definitions;
   26         requiring that each patient, or the patient’s legal
   27         representative, receive written notice regarding the
   28         patient’s exclusive remedy for injury or damage
   29         suffered; providing that an employee providing patient
   30         services is not an employee or agent of the state for
   31         purposes of workers’ compensation; providing for
   32         application; providing an effective date.
   34  Be It Enacted by the Legislature of the State of Florida:
   36         Section 1. (1) The Legislature finds that access to
   37  quality, affordable health care for residents of this state is a
   38  necessary goal for the state and that public teaching hospitals
   39  play an essential role in providing access to comprehensive
   40  health care services.
   41         (2) The Legislature finds that this state:
   42         (a) Has the largest and fastest growing percentage of
   43  citizens over the age of 65, who typically have their health
   44  care needs increase as their age increases.
   45         (b) Ranks fifth highest in the nation in the number of
   46  citizens who are uninsured.
   47         (c) Ranks eighth highest in the nation in active physicians
   48  age 60 or older, with 25 percent of this state’s physicians over
   49  the age of 65.
   50         (d) Ranks third highest in the nation in the number of
   51  active physicians who are international medical graduates,
   52  creating a dependency on physicians educated and trained in
   53  other states and countries.
   54         (e) Has been impacted by medical malpractice, liability,
   55  and reimbursement issues.
   56         (3) The Legislature finds that the rapidly growing
   57  population and changing demographics of this state make it
   58  imperative that students continue to choose this state as the
   59  place to receive their medical education and practice medicine.
   60         (4) The Legislature finds that graduate medical education
   61  is the process of comprehensive specialty training that a
   62  medical school graduate undertakes to develop and refine skills.
   63  Residents work under the direct supervision of medical faculty,
   64  who provide guidance, training, and oversight, serving as role
   65  models to young physicians. The vast majority of this care takes
   66  place in large teaching hospitals, which serve as “safety nets”
   67  to many indigent and underserved patients who otherwise might
   68  not receive help. Resident training, including the supervision
   69  component, is an important part of ensuring access to care by
   70  residents and medical doctors in training who render appropriate
   71  and quality care. Medical faculty provide the vital link between
   72  access to quality care and balancing the demands of educating
   73  and training residents. Physicians who assume this role are
   74  often juggling the demands of patient care, teaching, research,
   75  and policy and budgetary issues related to the programs they
   76  administer.
   77         (5) The Legislature finds that access to quality health
   78  care at public teaching hospitals is enhanced when public
   79  teaching hospitals affiliate and coordinate their common
   80  endeavors with medical schools. The existing definition of a
   81  teaching hospital in s. 408.07, Florida Statutes, contemplates
   82  such affiliations between teaching hospitals and accredited
   83  medical schools in this state. These affiliations are an
   84  integral part of the delivery of more efficient and economical
   85  health care services to patients in public teaching hospitals by
   86  offering a single, high quality of care to all patients
   87  regardless of income. These affiliations also provide quality
   88  graduate medical education programs to resident physicians who
   89  provide patient services at public teaching hospitals. These
   90  affiliations ensure continued access to quality, comprehensive
   91  health care services for residents of this state and, therefore,
   92  should be encouraged in order to maintain and expand such
   93  services.
   94         (6)(a) The Legislature finds that s. 381.0403, Florida
   95  Statutes, “The Community Hospital Education Act” (CHEP),
   96  established programs “intended to provide additional outpatient
   97  and inpatient services, a continuing supply of highly trained
   98  physicians, and graduate medical education.” Section
   99  381.0403(9), Florida Statutes, before its amendment by chapter
  100  2010-161, Laws of Florida, required the Executive Office of the
  101  Governor, the Department of Health, and the Agency for Health
  102  Care Administration to collaborate in the establishment of a
  103  committee to produce an annual report on graduate medical
  104  education which addressed the role of residents and medical
  105  faculty in the provision of health care; the relationship of
  106  graduate medical education to the state’s physician workforce;
  107  the costs of training medical residents for hospitals, medical
  108  schools, teaching hospitals, including all hospital-medical
  109  affiliations, practice plans at all of the medical schools, and
  110  municipalities; the availability and adequacy of all sources of
  111  revenue to support graduate medical education and recommended
  112  alternative sources of funding for graduate medical education;
  113  and the use of state and federal funds for graduate medical
  114  education by hospitals receiving such funds.
  115         (b) The Graduate Medical Education Committee submitted
  116  Reports in 2009 and 2010 and, among other findings, determined
  117  that graduate medical education training has a direct impact on
  118  the quality and adequacy of the state’s physician specialty and
  119  subspecialty workforce and the geographic distribution of
  120  physicians; the support and expansion of residency programs in
  121  critical need areas could result in more primary care
  122  practitioners and specialists practicing in this state; medical
  123  residents are more likely to practice in the state where they
  124  completed their graduate medical education training than where
  125  they went to medical school; quality, prestigious programs
  126  attract the best students, who stay as practicing physicians;
  127  medical residents act as “safety nets” to care for indigent,
  128  uninsured, and underserved patients in this state; supporting
  129  residency programs helps ensure this state’s ability to train
  130  and retain the caliber of medical doctors its citizens and
  131  visitors deserve; and ongoing strategic planning for the
  132  expanded capacity of graduate medical education programs is
  133  crucial in order for the state to meet its health care needs.
  134  However, the January 2010 Annual Report of Graduate Medical
  135  Education in Florida by the Graduate Medical Education Committee
  136  indicated that the Association of American Medical Colleges
  137  ranked Florida 43rd nationally in the number of resident
  138  physicians in training per 100,000 population.
  139         (7) The Legislature finds that ss. 28 and 29, chapter 2010
  140  161, Laws of Florida, which amended ss. 381.0403 and 381.4018,
  141  Florida Statutes, respectively, modified the existing law that
  142  established the responsibility of the Department of Health for
  143  physician workforce development and created a Physician
  144  Workforce Advisory Council and a graduate medical education
  145  innovation program. The legislative intent in s. 381.4018,
  146  Florida Statutes, recognizes that “physician workforce planning
  147  is an essential component of ensuring that there is an adequate
  148  and appropriate supply of well-trained physicians to meet this
  149  state’s future health care service needs as the general
  150  population and elderly population of the state increase.”
  151  According to the Council on Graduate Medical Education’s
  152  sixteenth report entitled “Physician Workforce Policy Guidelines
  153  for the United States, 2000-2010 (January 2005),” this country
  154  could see shortages as high as 85,000 physicians by 2020.
  155         (8) The Legislature finds, based upon the 2008 Florida
  156  Physician Workforce Annual Report from the Department of Health,
  157  that although the American Association of Medical Colleges
  158  reports that this state ranks 15th nationally in the number of
  159  active physicians per 100,000 population, these national-level
  160  data do not take into account many factors that determine the
  161  number of actively practicing physicians. Rather, additional
  162  concerns impact this state’s physician workforce, including the
  163  current practice environment for physicians. These concerns
  164  include malpractice insurance and liability costs, reimbursement
  165  rates, administrative burdens, and the impact of Amendment 8,
  166  approved in November 2004, which created s. 26, Article X of the
  167  State Constitution, which prohibits persons found to have
  168  committed three or more incidents of medical malpractice from
  169  being licensed by this state to provide health care services as
  170  a medical doctor. As the department concluded, these service
  171  delivery concerns may hinder the recruitment of doctors to this
  172  state based on the real or perceived influence of the severity
  173  of the medical liability climate in this state.
  174         (9) The Legislature finds that when medical schools
  175  affiliate or enter into contracts with public teaching hospitals
  176  to provide patient services, but medical schools and their
  177  employees do not have the same level of protection against
  178  liability claims as public teaching hospitals and their public
  179  employees when providing the same patient services to the same
  180  patients, the exposure of these medical schools and their
  181  employees to claims arising out of alleged medical malpractice
  182  and other allegedly negligent acts is increased
  183  disproportionately. With the recent growth in the availability
  184  of state-established medical schools and medical education
  185  programs and ongoing efforts to support, strengthen, and
  186  increase the available residency training positions and medical
  187  faculty in both existing and newly designated teaching
  188  hospitals, this exposure and the consequent disparity will
  189  continue to increase. This will add to the current crisis with
  190  respect to the physician workforce in the state, which will be
  191  alleviated only through legislative relief.
  192         (10) The Legislature finds that the high cost of litigation
  193  and unequal liability exposure have adversely impacted the
  194  ability of some medical schools to provide or permit their
  195  employees to provide patient services to patients in public
  196  teaching hospitals. If corrective action is not taken, this
  197  health care crisis will lead to the reduction of patient
  198  services in public teaching hospitals. In addition, it will
  199  reduce the ability of public teaching hospitals to further
  200  support their public mission through the admission of patients
  201  to their teaching services and reduce the ability of public
  202  teaching hospitals to act as teaching sites for medical students
  203  from private and public medical schools. It will also contribute
  204  to a reduction in the high-quality medical care and training
  205  provided through public teaching hospitals that are affiliated
  206  with accredited medical schools as well as a reduction in
  207  essential research, program development, and infrastructure
  208  improvements in public teaching hospitals.
  209         (11) The Legislature finds that the public will benefit
  210  from corrective action to address the foregoing concerns.
  211  Designating medical schools and their employees as agents of the
  212  state who are subject to the protections of sovereign immunity
  213  when providing patient services in public teaching hospitals
  214  pursuant to an affiliation agreement or other written contract
  215  will maintain and increase that public benefit.
  216         (12) The Legislature finds that making high-quality health
  217  care available to the residents of this state is an overwhelming
  218  public necessity.
  219         (13) The Legislature finds that ensuring that medical
  220  schools and their employees are able continue to practice, treat
  221  patients, supervise medical and graduate education, engage in
  222  research, and provide administrative support and services in
  223  public teaching hospitals is an overwhelming public necessity.
  224         (14) It is the intent of the Legislature that medical
  225  schools that provide or permit their employees to provide
  226  patient services in public teaching hospitals pursuant to an
  227  affiliation agreement or other contract be subject to sovereign
  228  immunity protections under s. 768.28, Florida Statutes, in the
  229  same manner and to the same extent as the state, its agencies,
  230  and political subdivisions.
  231         (15) It is the intent of the Legislature that employees of
  232  medical schools who provide patient services in a public
  233  teaching hospital and the employees of public teaching hospitals
  234  be immune from lawsuits in the same manner and to the same
  235  extent as employees and agents of the state, its agencies, and
  236  political subdivisions and that they not be held personally
  237  liable in tort or named as a party defendant in an action while
  238  performing patient services, except as provided in s.
  239  768.28(9)(a), Florida Statutes.
  240         (16) The Legislature finds that there is an overwhelming
  241  public necessity for this legislative action and that there is
  242  no alternative method of meeting such public necessity.
  243         Section 2. Subsection (11) of section 766.1115, Florida
  244  Statutes, is amended to read:
  245         766.1115 Health care providers; creation of agency
  246  relationship with governmental contractors.—
  247         (11) APPLICABILITY.—This section applies to incidents
  248  occurring on or after April 17, 1992. This section does not
  249  apply to any health care contract entered into by the Department
  250  of Corrections which is subject to s. 768.28(10)(a). This
  251  section does not apply to any affiliation agreement or other
  252  contract which is subject to s. 768.28(10)(f). Nothing in this
  253  section in any way reduces or limits the rights of the state or
  254  any of its agencies or subdivisions to any benefit currently
  255  provided under s. 768.28.
  256         Section 3. Paragraph (b) of subsection (9) of section
  257  768.28, Florida Statutes, is amended, and paragraph (f) is added
  258  to subsection (10) of that section, to read:
  259         768.28 Waiver of sovereign immunity in tort actions;
  260  recovery limits; limitation on attorney fees; statute of
  261  limitations; exclusions; indemnification; risk management
  262  programs.—
  263         (9)
  264         (b) As used in this subsection, the term:
  265         1. “Employee” includes any volunteer firefighter.
  266         2. “Officer, employee, or agent” includes, but is not
  267  limited to, any health care provider when providing services
  268  pursuant to s. 766.1115;, any member of the Florida Health
  269  Services Corps, as defined in s. 381.0302, who provides
  270  uncompensated care to medically indigent persons referred by the
  271  Department of Health; a Florida not-for-profit college,
  272  university, or medical school and the employees or agents of
  273  such college, university, or medical school pursuant to
  274  paragraph (10)(f);, and any public defender or her or his
  275  employee or agent, including, among others, an assistant public
  276  defender and an investigator.
  277         (10)
  278         (f)1. For purposes of this section, any Florida not-for
  279  profit college or university that owns or operates an accredited
  280  medical school or any of its employees or agents that have
  281  agreed in an affiliation agreement or other contract to provide
  282  patient services as agents of a teaching hospital, as defined in
  283  s. 408.07(45), which is owned or operated by the state, a
  284  county, a municipality, a public health trust, a special taxing
  285  district, any other governmental entity having health care
  286  responsibilities, or a not-for-profit entity that operates such
  287  facilities as an agent of that governmental entity under a lease
  288  or other contract, are agents of the state and are immune from
  289  liability for torts in the same manner and to the same extent as
  290  a teaching hospital and its governmental owner or operator while
  291  acting within the scope of and pursuant to guidelines
  292  established in the contract.
  293         2. The contract shall provide, to the extent permitted by
  294  law, for the indemnification of the state by the agent for any
  295  liability incurred up to the limits set forth in this chapter to
  296  the extent caused by the negligence of the college, university,
  297  or medical school or its employees or agents. As used in this
  298  paragraph, the term “patient services” means any comprehensive
  299  health care services, as defined in s. 641.19(4); the training
  300  or supervision of medical students, interns, residents, or
  301  fellows; access to or participation in medical research
  302  protocols; or any related executive, managerial, or
  303  administrative services provided according to an affiliation
  304  agreement or other contract with the teaching hospital or its
  305  governmental owner or operator. The contract must also provide
  306  that those limited portions of the college, university, or
  307  medical school which are directly providing services pursuant to
  308  the contract and which are considered an agency of the state for
  309  purposes of this section are acting on behalf of a public agency
  310  as defined in s. 119.011(2). As used in this paragraph, the
  311  term, “employee or agent of a college, university, or medical
  312  school” means, but is not limited to, an officer, a member of
  313  the faculty, a health care practitioner or licensee defined in
  314  s. 456.001, or any other person who is directly or vicariously
  315  liable. Such employee or agent of a college, university, or its
  316  medical school is not personally liable in tort and may not be
  317  named as a party defendant in any action arising from the
  318  provision of any such patient services, except as provided in
  319  paragraph (9)(a).
  320         3. The public teaching hospital, the medical school, or its
  321  employees or agents must provide written notice to each patient,
  322  or the patient’s legal representative, the receipt of which must
  323  be acknowledged in writing, that the medical school and its
  324  employees are agents of the state and that the exclusive remedy
  325  for injury or damage suffered as a result of any act or omission
  326  of the public teaching hospital, the medical school, or an
  327  employee or agent of the medical school while acting within the
  328  scope of her or his duties pursuant to the affiliation agreement
  329  or other contract is by commencement of an action under this
  330  section.
  331         4. This paragraph does not make an employee providing
  332  patient services an employee or agent of the state for purposes
  333  of chapter 440.
  334         Section 4. This act shall take effect upon becoming a law,
  335  and applies to all claims accruing on or after that date.