CS for SB 1676                                   First Engrossed
    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         provisions expanding sovereign immunity to include
   11         certain colleges and universities when providing
   12         patient services; providing that certain colleges and
   13         universities that own or operate a medical school or
   14         any of its employees or agents providing patient
   15         services pursuant to a contract with a teaching
   16         hospital are agents of the teaching hospital and are
   17         immune from certain liability for torts; requiring the
   18         contract to provide for indemnification; providing
   19         that the portion of the not-for-profit entity which is
   20         considered to be an agent of the teaching hospital for
   21         purposes of extension of the waiver of sovereign
   22         immunity is deemed to be acting on behalf of a public
   23         agency for purposes of public-records laws; providing
   24         definitions; requiring that each patient, or the
   25         patient’s legal representative, receive notice
   26         regarding the patient’s exclusive remedy for injury or
   27         damage suffered; providing that an employee providing
   28         patient services is not an employee or agent of the
   29         state for purposes of workers’ compensation; providing
   30         for application; providing an effective date.
   32  Be It Enacted by the Legislature of the State of Florida:
   34         Section 1. (1) The Legislature finds that:
   35         (a) Access to high-quality, comprehensive, and affordable
   36  health care for all persons in this state is a necessary state
   37  goal and teaching hospitals play an essential role in providing
   38  that access.
   39         (b) Graduate medical education, provided by nonprofit
   40  independent colleges and universities located and chartered in
   41  this state which own or operate medical schools, helps provide
   42  the comprehensive specialty training needed by medical school
   43  graduates to develop and refine the skills essential to the
   44  provision of high-quality health care for state residents. Much
   45  of that education and training is provided in teaching hospitals
   46  under the direct supervision of medical faculty who provide
   47  guidance, training, and oversight and serve as role models to
   48  their students.
   49         (c) A large proportion of medical care is provided in
   50  teaching hospitals that serve as safety nets for many indigent
   51  and underserved patients who otherwise might not receive the
   52  medical help they need. Resident physician training that takes
   53  place in such hospitals provides much of the care provided to
   54  this population. Medical faculty, supervising such training and
   55  care, are a vital link between educating and training resident
   56  physicians and ensuring the provision of quality care for
   57  indigent and underserved residents. Physicians who assume this
   58  role are often called upon to juggle the demands of patient
   59  care, teaching, health policy, and budgetary issues related to
   60  the programs they administer.
   61         (d) While teaching hospitals are afforded state sovereign
   62  immunity protections under s. 768.28, Florida Statutes, the
   63  nonprofit independent colleges and universities located and
   64  chartered in this state which own or operate medical schools and
   65  which enter into affiliation agreements or contracts with the
   66  teaching hospitals to provide patient services are not afforded
   67  the same sovereign immunity protections. The employees or agents
   68  of such nonprofit independent colleges and universities,
   69  therefore, do not have the same level of protection against
   70  liability claims as the employees and agents of teaching
   71  hospitals providing the same patient services to the same
   72  patients.
   73         (e) Nonprofit colleges and universities located and
   74  chartered in this state which own or operate medical schools and
   75  their employees and agents, which are not covered by the state’s
   76  sovereign immunity protections, are disproportionately affected
   77  by claims arising out of alleged medical malpractice and other
   78  allegedly negligent acts. Given the recent growth in medical
   79  schools and medical education programs and ongoing efforts to
   80  support, strengthen, and increase physician residency training
   81  positions and medical faculty in both existing and newly
   82  designated teaching hospitals, this exposure and the consequent
   83  disparity in liability exposure will continue to increase. The
   84  vulnerability of these colleges and universities to claims of
   85  medical malpractice will only add to the current physician
   86  workforce crisis in this state and can be alleviated only
   87  through legislative action.
   88         (f) Ensuring that the employees and agents of nonprofit
   89  independent colleges and universities located and chartered in
   90  this state which own or operate medical schools are able to
   91  continue to treat patients, provide graduate medical education,
   92  supervise medical students, and provide administrative support
   93  and services in teaching hospitals is an overwhelming public
   94  necessity.
   95         (2) The Legislature intends that:
   96         (a) Employees and agents of nonprofit independent colleges
   97  and universities located and chartered in this state which own
   98  or operate medical schools who provide patient services as
   99  agents of a teaching hospital be immune from lawsuits in the
  100  same manner and to the same extent as employees and agents of
  101  teaching hospitals in this state under existing law, and that
  102  such colleges and universities and their employees and agents
  103  not be held personally liable in tort or named as a party
  104  defendant in an action while providing patient services in a
  105  teaching hospital, unless such services are provided in bad
  106  faith, with malicious purpose, or in a manner exhibiting wanton
  107  and willful disregard of human rights, safety, or property.
  108         (b) Nonprofit independent private colleges and universities
  109  located and chartered in this state which own or operate medical
  110  schools and which permit their employees or agents to provide
  111  patient services in teaching hospitals pursuant to an
  112  affiliation agreement or other contract be afforded sovereign
  113  immunity protections under s. 768.28, Florida Statutes.
  114         (3) The Legislature declares that there is an overwhelming
  115  public necessity for extending the state’s sovereign immunity to
  116  nonprofit independent colleges and universities located and
  117  chartered in this state which own or operate medical schools and
  118  provide patient services in teaching hospitals, and to their
  119  employees and agents, and that there is no alternative method of
  120  meeting such public necessity.
  121         (4) The terms “employee or agent,” “patient services,” and
  122  “teaching hospital” as used in this section have the same
  123  meaning as defined in s. 768.28, Florida Statutes, as amended by
  124  this act.
  125         Section 2. Subsection (11) of section 766.1115, Florida
  126  Statutes, is amended to read:
  127         766.1115 Health care providers; creation of agency
  128  relationship with governmental contractors.—
  129         (11) APPLICABILITY.—This section applies to incidents
  130  occurring on or after April 17, 1992. This section does not:
  131         (a) Apply to any health care contract entered into by the
  132  Department of Corrections which is subject to s. 768.28(10)(a).
  133         (b) Apply to any affiliation agreement or other contract
  134  that is subject to s. 768.28(10)(f). Nothing in this section in
  135  any way reduces or limits
  136         (c) Reduce or limit the rights of the state or any of its
  137  agencies or subdivisions to any benefit currently provided under
  138  s. 768.28.
  139         Section 3. Paragraph (b) of subsection (9) of section
  140  768.28, Florida Statutes, is amended, and paragraph (f) is added
  141  to subsection (10) of that section, to read:
  142         768.28 Waiver of sovereign immunity in tort actions;
  143  recovery limits; limitation on attorney fees; statute of
  144  limitations; exclusions; indemnification; risk management
  145  programs.—
  146         (9)
  147         (b) As used in this subsection, the term:
  148         1. “Employee” includes any volunteer firefighter.
  149         2. “Officer, employee, or agent” includes, but is not
  150  limited to, any health care provider when providing services
  151  pursuant to s. 766.1115;, any member of the Florida Health
  152  Services Corps, as defined in s. 381.0302, who provides
  153  uncompensated care to medically indigent persons referred by the
  154  Department of Health; any nonprofit independent college or
  155  university located and chartered in this state which owns or
  156  operates an accredited medical school, and its employees or
  157  agents, when providing patient services pursuant to paragraph
  158  (10)(f);, and any public defender or her or his employee or
  159  agent, including, among others, an assistant public defender and
  160  an investigator.
  161         (10)
  162         (f) For purposes of this section, any nonprofit independent
  163  college or university located and chartered in this state which
  164  owns or operates an accredited medical school, or any of its
  165  employees or agents, and which has agreed in an affiliation
  166  agreement or other contract to provide, or permit its employees
  167  or agents to provide, patient services as agents of a teaching
  168  hospital, is considered an agent of the teaching hospital while
  169  acting within the scope of and pursuant to guidelines
  170  established in the affiliation agreement or other contract. To
  171  the extent allowed by law, the contract must provide for the
  172  indemnification of the teaching hospital, up to the limits set
  173  out in this chapter, by the agent for any liability incurred
  174  which was caused by the negligence of the college or university
  175  or its employees or agents. The contract must also provide that
  176  those limited portions of the college, university, or medical
  177  school which are directly providing services pursuant to the
  178  contract and which are considered an agent of the teaching
  179  hospital for purposes of this section are deemed to be acting on
  180  behalf of a public agency as defined in s. 119.011(2).
  181         1. For purposes of this paragraph, the term:
  182         a. “Employee or agent” means an officer, employee, agent,
  183  or servant of a nonprofit independent college or university
  184  located and chartered in this state which owns or operates an
  185  accredited medical school, including, but not limited to, the
  186  faculty of the medical school, any health care practitioner or
  187  licensee as defined in s. 456.001 for which the college or
  188  university is vicariously liable, and the staff or
  189  administrators of the medical school.
  190         b. “Patient services” mean:
  191         (I) Comprehensive health care services as defined in s.
  192  641.19, including any related administrative service, provided
  193  to patients in a teaching hospital;
  194         (II) Training and supervision of interns, residents, and
  195  fellows providing patient services in a teaching hospital; or
  196         (III) Training and supervision of medical students in a
  197  teaching hospital.
  198         c. “Teaching hospital” means a teaching hospital as defined
  199  in s. 408.07 which is owned or operated by the state, a county
  200  or municipality, a public health trust, a special taxing
  201  district, a governmental entity having health care
  202  responsibilities, or a not-for-profit entity that operates such
  203  facility as an agent of the state, or a political subdivision of
  204  the state, under a lease or other contract.
  205         2. The teaching hospital or the medical school, or its
  206  employees or agents, must provide notice to each patient, or the
  207  patient’s legal representative, that the college or university
  208  that owns or operates the medical school and the employees or
  209  agents of that college or university are acting as agents of the
  210  teaching hospital and that the exclusive remedy for injury or
  211  damage suffered as the result of any act or omission of the
  212  teaching hospital, the college or university that owns or
  213  operates the medical school, or the employees or agents of the
  214  college or university, while acting within the scope of duties
  215  pursuant to the affiliation agreement or other contract with a
  216  teaching hospital, is by commencement of an action pursuant to
  217  the provisions of this section. This notice requirement may be
  218  met by posting the notice in a place conspicuous to all persons.
  219         3. This paragraph does not designate any employee providing
  220  contracted patient services in a teaching hospital as an
  221  employee or agent of the state for purposes of chapter 440.
  222         Section 4. This act shall take effect upon becoming a law,
  223  and applies to all claims accruing on or after that date.