Florida Senate - 2011 SB 1892
By Senator Bennett
1 A bill to be entitled
2 An act relating to health care; creating ss. 458.3175
3 and 459.0066, F.S.; requiring the Board of Medicine
4 and the Board of Osteopathic Medicine to issue expert
5 witness certificates to certain physicians licensed
6 outside the state; providing application and
7 certification requirements; establishing application
8 fees; providing for validity and use of certificates;
9 exempting physicians issued certificates from certain
10 licensure and fee requirements; requiring the boards
11 to adopt rules; amending ss. 458.331 and 459.015,
12 F.S.; providing additional acts that constitute
13 grounds for denial of a license or disciplinary action
14 to which penalties apply; providing construction with
15 respect to the doctrine of incorporation by reference;
16 amending ss. 458.351 and 459.026, F.S.; requiring the
17 boards to adopt within a specified period certain
18 patient forms specifying cataract surgery risks;
19 exempting rules adopting the patient forms from
20 certain administrative procedures; specifying that an
21 incident resulting from risks disclosed in the patient
22 form is not an adverse incident; providing for the
23 execution and admissibility of the patient forms in
24 civil and administrative proceedings; creating a
25 rebuttable presumption that a physician disclosed
26 cataract surgery risks if the patient form is
27 executed; amending s. 464.012, F.S.; expanding the
28 scope of practice to authorize an advanced registered
29 nurse practitioner to order, administer, monitor, and
30 alter any drug or drug therapies that are necessary
31 for the proper medical care and treatment of a patient
32 under specified circumstances; requiring that the
33 Board of Nursing adopt rules; authorizing a certified
34 registered nurse anesthetist, while participating in
35 the management of a patient in the postanesthesia
36 recovery area, to order the administration of drugs
37 that are commonly used to alleviate pain; amending s.
38 627.4147, F.S.; deleting a requirement that medical
39 malpractice insurance contracts contain a clause
40 authorizing the insurer to make and conclude certain
41 offers within policy limits over the insured’s veto;
42 amending s. 766.102, F.S.; revising the burden of
43 proof that a claimant must demonstrate in order to
44 prove medical negligence by a health care provider;
45 defining terms; providing that certain insurance
46 information is not admissible as evidence in civil
47 actions; requiring that certain expert witnesses who
48 provide expert testimony meet certain licensure or
49 certification requirements; establishing the burden of
50 proof that a claimant must meet in certain damage
51 claims against health care providers based on death or
52 personal injury; excluding a health care provider’s
53 failure to comply with or a breach of federal
54 requirements from evidence in medical negligence cases
55 in the state; amending s. 766.106, F.S.; requiring
56 claimants for medical malpractice to execute an
57 authorization form; allowing prospective medical
58 malpractice defendants to interview a claimant’s
59 treating health care provider without notice to or the
60 presence of the claimant or the claimant’s legal
61 representative; authorizing prospective defendants to
62 take unsworn statements of a claimant’s health care
63 provider; creating s. 766.1065, F.S.; requiring that
64 presuit notice for medical negligence claims be
65 accompanied by an authorization for release of
66 protected health information; providing requirements
67 for the form of such authorization; amending s.
68 766.206, F.S.; requiring dismissal of a medical
69 malpractice claim if such authorization is not
70 completed in good faith; amending s. 768.0981, F.S.;
71 limiting the liability of hospitals related to certain
72 medical negligence claims; providing an effective
75 Be It Enacted by the Legislature of the State of Florida:
77 Section 1. Section 458.3175, Florida Statutes, is created
78 to read:
79 458.3175 Expert witness certificate.—
80 (1)(a) The board shall issue a certificate authorizing a
81 physician who holds an active and valid license to practice
82 medicine in another state or a province of Canada to provide
83 expert testimony in this state if the physician submits to the
84 board a complete registration application in the format
85 prescribed by the board, pays an application fee established by
86 the board not to exceed $50, and has not had a previous expert
87 witness certificate revoked by the board.
88 (b) The board shall approve or deny an application for an
89 expert witness certificate within 5 business days after receipt
90 of the completed application and payment of the application fee.
91 An application is approved by default if the board does not act
92 upon the application within the required period. A physician
93 must notify the board in writing of his or her intent to rely on
94 a certificate approved by default.
95 (c) An expert witness certificate is valid for 2 years
96 after the date of issuance.
97 (2) An expert witness certificate authorizes the physician
98 to whom the certificate is issued to do only the following:
99 (a) Provide a verified written medical expert opinion as
100 provided in s. 766.203.
101 (b) Provide expert testimony about the prevailing
102 professional standard of care in connection with medical
103 negligence litigation pending in this state against a physician
104 licensed under this chapter or chapter 459.
105 (3) An expert witness certificate does not authorize a
106 physician to engage in the practice of medicine as defined in s.
107 458.305. A physician issued a certificate under this section who
108 does not otherwise practice medicine in this state is not
109 required to obtain a license under this chapter or pay any
110 license fees, including, but not limited to, a neurological
111 injury compensation assessment.
112 (4) The board shall adopt rules to administer this section.
113 Section 2. Subsection (11) is added to section 458.331,
114 Florida Statutes, present paragraphs (oo) through (qq) of
115 subsection (1) of that section are redesignated as paragraphs
116 (pp) through (rr), respectively, and a new paragraph (oo) is
117 added to that subsection, to read:
118 458.331 Grounds for disciplinary action; action by the
119 board and department.—
120 (1) The following acts constitute grounds for denial of a
121 license or disciplinary action, as specified in s. 456.072(2):
122 (oo) Providing misleading, deceptive, or fraudulent expert
123 witness testimony related to the practice of medicine.
124 (11) The purpose of this section is to facilitate uniform
125 discipline for those acts made punishable under this section
126 and, to this end, a reference to this section constitutes a
127 general reference under the doctrine of incorporation by
129 Section 3. Present subsection (6) of section 458.351,
130 Florida Statutes, is renumbered as subsection (7), and a new
131 subsection (6) is added to that section, to read:
132 458.351 Reports of adverse incidents in office practice
134 (6)(a) The board shall adopt rules establishing a standard
135 informed consent form that sets forth the recognized specific
136 risks related to cataract surgery. The board must propose such
137 rules by October 1, 2011, and the provisions of s. 120.541
138 relating to adverse impacts, estimated regulatory costs, and
139 legislative ratification of rules do not apply to such rules.
140 (b) Before formally proposing the rule, the board must
141 consider information from physicians licensed under this chapter
142 or chapter 459 regarding recognized specific risks related to
143 cataract surgery and the standard informed consent forms adopted
144 for use in the medical field by other states.
145 (c) A patient’s informed consent is not executed until the
146 patient, or a person authorized by the patient to give consent,
147 and a competent witness sign the form adopted by the board.
148 (d) An incident resulting from recognized specific risks
149 described in the signed consent form is not considered an
150 adverse incident for purposes of s. 395.0197 and this section.
151 (e) In a civil action or administrative proceeding against
152 a physician based on his or her alleged failure to properly
153 disclose the risks of cataract surgery, a patient’s informed
154 consent executed as provided in paragraph (c) on the form
155 adopted by the board is admissible as evidence and creates a
156 rebuttable presumption that the physician properly disclosed the
157 risks. This rebuttable presumption shall be included in the
158 charge to the jury in a civil action.
159 Section 4. Section 459.0066, Florida Statutes, is created
160 to read:
161 459.0066 Expert witness certificate.—
162 (1)(a) The board shall issue a certificate authorizing a
163 physician who holds an active and valid license to practice
164 osteopathic medicine in another state or a province of Canada to
165 provide expert testimony in this state if the physician submits
166 to the board a complete registration application in the format
167 prescribed by the board, pays an application fee established by
168 the board not to exceed $50, and has not had a previous expert
169 witness certificate revoked by the board.
170 (b) The board shall approve or deny an application for an
171 expert witness certificate within 5 business days after receipt
172 of the completed application and payment of the application fee.
173 An application is approved by default if the board does not act
174 upon the application within the required period. A physician
175 must notify the board in writing of his or her intent to rely on
176 a certificate approved by default.
177 (c) An expert witness certificate is valid for 2 years
178 after the date of issuance.
179 (2) An expert witness certificate authorizes the physician
180 to whom the certificate is issued to do only the following:
181 (a) Provide a verified written medical expert opinion as
182 provided in s. 766.203.
183 (b) Provide expert testimony about the prevailing
184 professional standard of care in connection with medical
185 negligence litigation pending in this state against a physician
186 licensed under chapter 458 or this chapter.
187 (3) An expert witness certificate does not authorize a
188 physician to engage in the practice of osteopathic medicine as
189 defined in s. 459.003. A physician issued a certificate under
190 this section who does not otherwise practice osteopathic
191 medicine in this state is not required to obtain a license under
192 this chapter or pay any license fees, including, but not limited
193 to, a neurological injury compensation assessment.
194 (4) The board shall adopt rules to administer this section.
195 Section 5. Subsection (11) is added to section 459.015,
196 Florida Statutes, present paragraphs (qq) through (ss) of
197 subsection (1) of that section are redesignated as paragraphs
198 (rr) through (tt), respectively, and a new paragraph (qq) is
199 added to that subsection, to read:
200 459.015 Grounds for disciplinary action; action by the
201 board and department.—
202 (1) The following acts constitute grounds for denial of a
203 license or disciplinary action, as specified in s. 456.072(2):
204 (qq) Providing misleading, deceptive, or fraudulent expert
205 witness testimony related to the practice of osteopathic
207 (11) The purpose of this section is to facilitate uniform
208 discipline for those acts made punishable under this section
209 and, to this end, a reference to this section constitutes a
210 general reference under the doctrine of incorporation by
212 Section 6. Present subsection (6) of section 459.026,
213 Florida Statutes, is renumbered as subsection (7), and a new
214 subsection (6) is added to that section, to read:
215 459.026 Reports of adverse incidents in office practice
217 (6)(a) The board shall adopt rules establishing a standard
218 informed consent form that sets forth the recognized specific
219 risks related to cataract surgery. The board must propose such
220 rules by October 1, 2011, and the provisions of s. 120.541
221 relating to adverse impacts, estimated regulatory costs, and
222 legislative ratification of rules do not apply to such rules.
223 (b) Before formally proposing the rule, the board must
224 consider information from physicians licensed under chapter 458
225 or this chapter regarding recognized specific risks related to
226 cataract surgery and the standard informed consent forms adopted
227 for use in the medical field by other states.
228 (c) A patient’s informed consent is not executed until the
229 patient, or a person authorized by the patient to give consent,
230 and a competent witness sign the form adopted by the board.
231 (d) An incident resulting from recognized specific risks
232 described in the signed consent form is not considered an
233 adverse incident for purposes of s. 395.0197 and this section.
234 (e) In a civil action or administrative proceeding against
235 a physician based on his or her alleged failure to properly
236 disclose the risks of cataract surgery, a patient’s informed
237 consent executed as provided in paragraph (c) on the form
238 adopted by the board is admissible as evidence and creates a
239 rebuttable presumption that the physician properly disclosed the
240 risks. This rebuttable presumption shall be included in the
241 charge to the jury in a civil action.
242 Section 7. Subsection (3) and paragraph (a) of subsection
243 (4) of section 464.012, Florida Statutes, are amended to read:
244 464.012 Certification of advanced registered nurse
245 practitioners; fees.—
246 (3) An advanced registered nurse practitioner shall perform
247 those functions authorized in this section within the framework
248 of an established protocol that is filed with the board upon
249 biennial license renewal and within 30 days after entering into
250 a supervisory relationship with a physician or changes to the
251 protocol. The board shall review the protocol to ensure
252 compliance with applicable regulatory standards for protocols.
253 The board shall refer to the department licensees submitting
254 protocols that are not compliant with the regulatory standards
255 for protocols. A practitioner currently licensed under chapter
256 458, chapter 459, or chapter 466 shall maintain supervision for
257 directing the specific course of medical treatment. Within the
258 established framework, an advanced registered nurse practitioner
260 (a) Order, administer, monitor, and alter any drug or drug
261 therapies that are necessary for the proper medical care and
262 treatment of a patient, including Schedule II through Schedule V
263 controlled substances under chapter 893 and those drugs agreed
264 upon by the advanced registered nurse practitioner and the
265 supervising practitioner and specified in the protocol. An
266 advanced registered nurse practitioner may order or administer
267 such drugs under the following conditions:
268 1. The drugs are ordered or administered by an advanced
269 registered nurse practitioner in accordance with a protocol
270 developed by the advanced registered nurse practitioner and the
271 supervising practitioner, and the drugs ordered are consistent
272 with the advanced registered nurse practitioner’s educational
273 preparation or for which clinical competency has been
274 established and maintained.
275 2. The protocol covering the order or administration of
276 drugs specifies the name of the advanced registered nurse
277 practitioner who may administer or order drugs, the drugs that
278 may be ordered and the circumstances under which they may be
279 ordered, the extent of the practitioner’s supervision of the
280 advanced registered nurse practitioner, and the method of
281 periodic review of the advanced registered nurse practitioner’s
282 competence, including peer review. The protocol for
283 administering Schedule II controlled substances must address the
284 illness, injury, or condition for which a Schedule II controlled
285 substance is administered.
286 3. The administering or ordering of drugs by an advanced
287 registered nurse practitioner occurs under practitioner
288 supervision. As used in this paragraph, the term “practitioner
289 supervision” means a collaboration between the advanced
290 registered nurse practitioner and the supervising practitioner
291 on the development of the protocol and the availability of the
292 supervising practitioner via telephonic contact at the time the
293 patient is examined by the advanced registered nurse
294 practitioner. The term does not mean that the physical presence
295 of the supervising practitioner is required. A practitioner may
296 not supervise more than four advanced registered nurse
297 practitioners at any one time.
298 4. The controlled substances are administered or ordered in
299 accordance with a patient-specific protocol approved by the
300 treating or supervising practitioner if Schedule II or Schedule
301 III controlled substances are administered or ordered by the
302 advanced registered nurse practitioner. A copy of the section of
303 the advanced registered nurse practitioner’s protocol relating
304 to controlled substances must be provided upon request to the
305 licensed pharmacist who dispenses the drugs.
306 5. The board has certified that the advanced registered
307 nurse practitioner has satisfactorily completed:
308 a. At least 6 months of direct supervision in the
309 administering and ordering of drugs; and
310 b. A course in pharmacology covering the order, use,
311 administration, and dispensing of controlled substances.
313 The board shall adopt rules to administer this paragraph.
314 (b) Initiate appropriate therapies for certain conditions.
315 (c) Perform additional functions as may be determined by
316 rule in accordance with s. 464.003(2).
317 (d) Order diagnostic tests and physical and occupational
319 (4) In addition to the general functions specified in
320 subsection (3), an advanced registered nurse practitioner may
321 perform the following acts within his or her specialty:
322 (a) The certified registered nurse anesthetist may, to the
323 extent authorized by established protocol approved by the
324 medical staff of the facility in which the anesthetic service is
325 performed, perform any or all of the following:
326 1. Determine the health status of the patient as it relates
327 to the risk factors and to the anesthetic management of the
328 patient through the performance of the general functions.
329 2. Based on history, physical assessment, and supplemental
330 laboratory results, determine, with the consent of the
331 responsible physician, the appropriate type of anesthesia within
332 the framework of the protocol.
333 3. Order under the protocol preanesthetic medication.
334 4. Perform under the protocol procedures commonly used to
335 render the patient insensible to pain during the performance of
336 surgical, obstetrical, therapeutic, or diagnostic clinical
337 procedures. These procedures include ordering and administering
338 regional, spinal, and general anesthesia; inhalation agents and
339 techniques; intravenous agents and techniques; and techniques of
341 5. Order or perform monitoring procedures indicated as
342 pertinent to the anesthetic health care management of the
344 6. Support life functions during anesthesia health care,
345 including induction and intubation procedures, the use of
346 appropriate mechanical supportive devices, and the management of
347 fluid, electrolyte, and blood component balances.
348 7. Recognize and take appropriate corrective action for
349 abnormal patient responses to anesthesia, adjunctive medication,
350 or other forms of therapy.
351 8. Recognize and treat a cardiac arrhythmia while the
352 patient is under anesthetic care.
353 9. Participate in management of the patient while in the
354 postanesthesia recovery area, including ordering the
355 administration of fluids and drugs, which include those drugs
356 that are commonly used to alleviate pain.
357 10. Place special peripheral and central venous and
358 arterial lines for blood sampling and monitoring as appropriate.
359 Section 8. Paragraph (b) of subsection (1) of section
360 627.4147, Florida Statutes, is amended to read:
361 627.4147 Medical malpractice insurance contracts.—
362 (1) In addition to any other requirements imposed by law,
363 each self-insurance policy as authorized under s. 627.357 or s.
364 624.462 or insurance policy providing coverage for claims
365 arising out of the rendering of, or the failure to render,
366 medical care or services, including those of the Florida Medical
367 Malpractice Joint Underwriting Association, shall include:
Except as provided in subparagraph 2., a clause
369 authorizing the insurer or self-insurer to determine, to make,
370 and to conclude, without the permission of the insured, any
371 offer of admission of liability and for arbitration pursuant to
372 s. 766.106 , settlement offer, or offer of judgment, if the offer
373 is within the policy limits. It is against public policy for any
374 insurance or self-insurance policy to contain a clause giving
375 the insured the exclusive right to veto any offer for admission
376 of liability and for arbitration made pursuant to s. 766.106 ,
377 settlement offer, or offer of judgment, when such offer is
378 within the policy limits. However, any offer of admission of
379 liability, settlement offer, or offer of judgment made by an
380 insurer or self-insurer shall be made in good faith and in the
381 best interests of the insured.
382 2.a. With respect to dentists licensed under chapter 466, A
383 clause clearly stating whether or not the insured has the
384 exclusive right to veto any offer of admission of liability and
385 for arbitration pursuant to s. 766.106, settlement offer, or
386 offer of judgment if the offer is within policy limits. An
387 insurer or self-insurer shall not make or conclude, without the
388 permission of the insured, any offer of admission of liability
389 and for arbitration pursuant to s. 766.106, settlement offer, or
390 offer of judgment, if such offer is outside the policy limits.
391 However, any offer for admission of liability and for
392 arbitration made under s. 766.106, settlement offer, or offer of
393 judgment made by an insurer or self-insurer shall be made in
394 good faith and in the best interest of the insured.
395 2. b. If the policy contains a clause stating the insured
396 does not have the exclusive right to veto any offer or admission
397 of liability and for arbitration made pursuant to s. 766.106,
398 settlement offer or offer of judgment, the insurer or self
399 insurer shall provide to the insured or the insured’s legal
400 representative by certified mail, return receipt requested, a
401 copy of the final offer of admission of liability and for
402 arbitration made pursuant to s. 766.106, settlement offer or
403 offer of judgment and at the same time such offer is provided to
404 the claimant. A copy of any final agreement reached between the
405 insurer and claimant shall also be provided to the insurer or
406 his or her legal representative by certified mail, return
407 receipt requested not more than 10 days after affecting such
409 Section 9. Subsections (1), (3), (4), and (5) of section
410 766.102, Florida Statutes, are amended, present subsection (12)
411 of that section is renumbered as subsection (14), and new
412 subsections (12) and (13) are added to that section, to read:
413 766.102 Medical negligence; standards of recovery; expert
415 (1) In any action for recovery of damages based on the
416 death or personal injury of any person in which it is alleged
417 that such death or injury resulted from the negligence of a
418 health care provider as defined in s. 766.202(4), the claimant
419 shall have the burden of proving by clear and convincing the
420 greater weight of evidence that the alleged actions of the
421 health care provider represented a breach of the prevailing
422 professional standard of care for that health care provider. The
423 prevailing professional standard of care for a given health care
424 provider shall be that level of care, skill, and treatment
425 which, in light of all relevant surrounding circumstances, is
426 recognized as acceptable and appropriate by reasonably prudent
427 similar health care providers.
428 (3)(a) As used in this subsection, the term:
429 1. “Insurer” means any public or private insurer, including
430 the Centers for Medicare and Medicaid Services.
431 2. “Reimbursement determination” means an insurer’s
432 determination of the amount that the insurer will reimburse a
433 health care provider for health care services.
434 3. “Reimbursement policies” means an insurer’s policies and
435 procedures governing its decisions regarding health insurance
436 coverage and method of payment and the data upon which such
437 policies and procedures are based, including, but not limited
438 to, data from national research groups and other patient safety
439 data as defined in s. 766.1016.
440 (b) The existence of a medical injury does shall not create
441 any inference or presumption of negligence against a health care
442 provider, and the claimant must maintain the burden of proving
443 that an injury was proximately caused by a breach of the
444 prevailing professional standard of care by the health care
445 provider. Any records, policies, or testimony of an insurer’s
446 reimbursement policies or reimbursement determination regarding
447 the care provided to the plaintiff are not admissible as
448 evidence in any civil action. However, the discovery of the
449 presence of a foreign body, such as a sponge, clamp, forceps,
450 surgical needle, or other paraphernalia commonly used in
451 surgical, examination, or diagnostic procedures, shall be prima
452 facie evidence of negligence on the part of the health care
454 (4)(a) The Legislature is cognizant of the changing trends
455 and techniques for the delivery of health care in this state and
456 the discretion that is inherent in the diagnosis, care, and
457 treatment of patients by different health care providers. The
458 failure of a health care provider to order, perform, or
459 administer supplemental diagnostic tests is shall not be
460 actionable if the health care provider acted in good faith and
461 with due regard for the prevailing professional standard of
463 (b) In an action for damages based on death or personal
464 injury which alleges that such death or injury resulted from the
465 failure of a health care provider to order, perform, or
466 administer supplemental diagnostic tests, the claimant has the
467 burden of proving by clear and convincing evidence that the
468 alleged actions of the health care provider represented a breach
469 of the prevailing professional standard of care.
470 (5) A person may not give expert testimony concerning the
471 prevailing professional standard of care unless the that person
472 is a licensed health care provider who holds an active and valid
473 license and conducts a complete review of the pertinent medical
474 records and meets the following criteria:
475 (a) If the health care provider against whom or on whose
476 behalf the testimony is offered is a specialist, the expert
477 witness must:
478 1. Specialize in the same specialty as the health care
479 provider against whom or on whose behalf the testimony is
480 offered; or specialize in a similar specialty that includes the
481 evaluation, diagnosis, or treatment of the medical condition
482 that is the subject of the claim and have prior experience
483 treating similar patients; and
484 2. Have devoted professional time during the 5 3 years
485 immediately preceding the date of the occurrence that is the
486 basis for the action to:
487 a. The active clinical practice of, or consulting with
488 respect to, the same or similar specialty that includes the
489 evaluation, diagnosis, or treatment of the medical condition
490 that is the subject of the claim and have prior experience
491 treating similar patients;
492 b. Instruction of students in an accredited health
493 professional school or accredited residency or clinical research
494 program in the same or similar specialty; or
495 c. A clinical research program that is affiliated with an
496 accredited health professional school or accredited residency or
497 clinical research program in the same or similar specialty.
498 (b) If the health care provider against whom or on whose
499 behalf the testimony is offered is a general practitioner, the
500 expert witness must have devoted professional time during the 5
501 years immediately preceding the date of the occurrence that is
502 the basis for the action to:
503 1. The active clinical practice or consultation as a
504 general practitioner;
505 2. The instruction of students in an accredited health
506 professional school or accredited residency program in the
507 general practice of medicine; or
508 3. A clinical research program that is affiliated with an
509 accredited medical school or teaching hospital and that is in
510 the general practice of medicine.
511 (c) If the health care provider against whom or on whose
512 behalf the testimony is offered is a health care provider other
513 than a specialist or a general practitioner, the expert witness
514 must have devoted professional time during the 5 3 years
515 immediately preceding the date of the occurrence that is the
516 basis for the action to:
517 1. The active clinical practice of, or consulting with
518 respect to, the same or similar health profession as the health
519 care provider against whom or on whose behalf the testimony is
521 2. The instruction of students in an accredited health
522 professional school or accredited residency program in the same
523 or similar health profession in which the health care provider
524 against whom or on whose behalf the testimony is offered; or
525 3. A clinical research program that is affiliated with an
526 accredited medical school or teaching hospital and that is in
527 the same or similar health profession as the health care
528 provider against whom or on whose behalf the testimony is
530 (12) If a physician licensed under chapter 458 or chapter
531 459 is the party against whom, or on whose behalf, expert
532 testimony about the prevailing professional standard of care is
533 offered, the expert witness must be licensed under chapter 458
534 or chapter 459 or possess a valid expert witness certificate
535 issued under s. 458.3175 or s. 459.0066.
536 (13) A health care provider’s failure to comply with or a
537 breach of any federal requirement is not admissible as evidence
538 in any medical negligence case in this state.
539 Section 10. Paragraph (a) of subsection (2), subsection
540 (5), and paragraph (b) of subsection (6) of section 766.106,
541 Florida Statutes, are amended to read:
542 766.106 Notice before filing action for medical negligence;
543 presuit screening period; offers for admission of liability and
544 for arbitration; informal discovery; review.—
545 (2) PRESUIT NOTICE.—
546 (a) After completion of presuit investigation pursuant to
547 s. 766.203(2) and prior to filing a complaint for medical
548 negligence, a claimant shall notify each prospective defendant
549 by certified mail, return receipt requested, of intent to
550 initiate litigation for medical negligence. Notice to each
551 prospective defendant must include, if available, a list of all
552 known health care providers seen by the claimant for the
553 injuries complained of subsequent to the alleged act of
554 negligence, all known health care providers during the 2-year
555 period prior to the alleged act of negligence who treated or
556 evaluated the claimant, and copies of all of the medical records
557 relied upon by the expert in signing the affidavit, and the
558 executed authorization form provided in s. 766.1065. The
559 requirement of providing the list of known health care providers
560 may not serve as grounds for imposing sanctions for failure to
561 provide presuit discovery.
562 (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
563 discussion, written document, report, or other work product
564 generated by the presuit screening process is not discoverable
565 or admissible in any civil action for any purpose by the
566 opposing party. All participants, including, but not limited to,
567 physicians, investigators, witnesses, and employees or
568 associates of the defendant, are immune from civil liability
569 arising from participation in the presuit screening process.
570 This subsection does not prevent a physician licensed under
571 chapter 458 or chapter 459 who submits a verified written expert
572 medical opinion from being subject to denial of a license or
573 disciplinary action under s. 458.331(1)(oo) or s.
575 (6) INFORMAL DISCOVERY.—
576 (b) Informal discovery may be used by a party to obtain
577 unsworn statements, the production of documents or things, and
578 physical and mental examinations, as follows:
579 1. Unsworn statements.—Any party may require other parties
580 to appear for the taking of an unsworn statement. Such
581 statements may be used only for the purpose of presuit screening
582 and are not discoverable or admissible in any civil action for
583 any purpose by any party. A party desiring to take the unsworn
584 statement of any party must give reasonable notice in writing to
585 all parties. The notice must state the time and place for taking
586 the statement and the name and address of the party to be
587 examined. Unless otherwise impractical, the examination of any
588 party must be done at the same time by all other parties. Any
589 party may be represented by counsel at the taking of an unsworn
590 statement. An unsworn statement may be recorded electronically,
591 stenographically, or on videotape. The taking of unsworn
592 statements is subject to the provisions of the Florida Rules of
593 Civil Procedure and may be terminated for abuses.
594 2. Documents or things.—Any party may request discovery of
595 documents or things. The documents or things must be produced,
596 at the expense of the requesting party, within 20 days after the
597 date of receipt of the request. A party is required to produce
598 discoverable documents or things within that party’s possession
599 or control. Medical records shall be produced as provided in s.
601 3. Physical and mental examinations.—A prospective
602 defendant may require an injured claimant to appear for
603 examination by an appropriate health care provider. The
604 prospective defendant shall give reasonable notice in writing to
605 all parties as to the time and place for examination. Unless
606 otherwise impractical, a claimant is required to submit to only
607 one examination on behalf of all potential defendants. The
608 practicality of a single examination must be determined by the
609 nature of the claimant’s condition, as it relates to the
610 liability of each prospective defendant. Such examination report
611 is available to the parties and their attorneys upon payment of
612 the reasonable cost of reproduction and may be used only for the
613 purpose of presuit screening. Otherwise, such examination report
614 is confidential and exempt from the provisions of s. 119.07(1)
615 and s. 24(a), Art. I of the State Constitution.
616 4. Written questions.—Any party may request answers to
617 written questions, the number of which may not exceed 30,
618 including subparts. A response must be made within 20 days after
619 receipt of the questions.
620 5. Ex parte interviews of treating health care providers.—A
621 prospective defendant or his or her legal representative shall
622 have access to interview the claimant’s treating health care
623 providers without notice to or the presence of the claimant or
624 the claimant’s legal representative.
625 6. 5. Unsworn statements of treating health care providers
626 Medical information release.— The claimant must execute a medical
627 information release that allows A prospective defendant or his
628 or her legal representative may also to take unsworn statements
629 of the claimant’s treating health care providers physicians. The
630 statements must be limited to those areas that are potentially
631 relevant to the claim of personal injury or wrongful death.
632 Subject to the procedural requirements of subparagraph 1., a
633 prospective defendant may take unsworn statements from a
634 claimant’s treating physicians. Reasonable notice and
635 opportunity to be heard must be given to the claimant or the
636 claimant’s legal representative before taking unsworn
637 statements. The claimant or claimant’s legal representative has
638 the right to attend the taking of such unsworn statements.
639 Section 11. Section 766.1065, Florida Statutes, is created
640 to read:
641 766.1065 Authorization for release of protected health
643 (1) Presuit notice of intent to initiate litigation for
644 medical negligence under s. 766.106(2) must be accompanied by an
645 authorization for release of protected health information in the
646 form specified by this section, authorizing the disclosure of
647 protected health information that is potentially relevant to the
648 claim of personal injury or wrongful death. The presuit notice
649 is void if this authorization does not accompany the presuit
650 notice and other materials required by s. 766.106(2).
651 (2) If the authorization required by this section is
652 revoked, the presuit notice under s. 766.106(2) is deemed
653 retroactively void from the date of issuance, and any tolling
654 effect that the presuit notice may have had on any applicable
655 statute-of-limitations period is retroactively rendered void.
656 (3) The authorization required by this section shall be in
657 the following form and shall be construed in accordance with the
658 “Standards for Privacy of Individually Identifiable Health
659 Information” in 45 C.F.R. parts 160 and 164:
661 AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
663 A. I, (...Name of patient or authorized
664 representative...) [hereinafter “Patient”], authorize
665 that (...Name of health care provider to whom the
666 presuit notice is directed...) and his/her/its
667 insurer(s), self-insurer(s), and attorney(s) may
668 obtain and disclose (within the parameters set out
669 below) the protected health information described
670 below for the following specific purposes:
671 1. Facilitating the investigation and evaluation
672 of the medical negligence claim described in the
673 accompanying presuit notice; or
674 2. Defending against any litigation arising out
675 of the medical negligence claim made on the basis of
676 the accompanying presuit notice.
677 B. The health information obtained, used, or
678 disclosed extends to, and includes, the verbal, as
679 well as the written, and is described as follows:
680 1. The health information in the custody of the
681 following health care providers who have examined,
682 evaluated, or treated the Patient in connection with
683 injuries complained of after the alleged act of
684 negligence: (List the name and current address of all
685 health care providers). This authorization extends to
686 any additional health care providers that may in the
687 future evaluate, examine, or treat the Patient for the
688 injuries complained of.
689 2. The health information in the custody of the
690 following health care providers who have examined,
691 evaluated, or treated the Patient during a period
692 commencing 2 years before the incident that is the
693 basis of the accompanying presuit notice.
695 (List the name and current address of such health care
696 providers, if applicable.)
698 C. This authorization does not apply to the
699 following list of health care providers possessing
700 health care information about the Patient because the
701 Patient certifies that such health care information is
702 not potentially relevant to the claim of personal
703 injury or wrongful death which is the basis of the
704 accompanying presuit notice.
706 (List the name of each health care provider to whom
707 this authorization does not apply and the inclusive
708 dates of examination, evaluation, or treatment to be
709 withheld from disclosure. If none, specify “none.”)
711 D. The persons or class of persons to whom the
712 Patient authorizes such health information to be
713 disclosed or by whom such health information is to be
715 1. Any health care provider providing care or
716 treatment for the Patient.
717 2. Any liability insurer or self-insurer
718 providing liability insurance coverage, self
719 insurance, or defense to any health care provider to
720 whom presuit notice is given regarding the care and
721 treatment of the Patient.
722 3. Any consulting or testifying expert employed
723 by or on behalf of (name of health care provider to
724 whom presuit notice was given) his/her/its insurer(s),
725 self-insurer(s), or attorney(s) regarding the matter
726 of the presuit notice accompanying this authorization.
727 4. Any attorney (including secretarial, clerical,
728 or paralegal staff) employed by or on behalf of (name
729 of health care provider to whom presuit notice was
730 given) regarding the matter of the presuit notice
731 accompanying this authorization.
732 5. Any trier of the law or facts relating to any
733 suit filed seeking damages arising out of the medical
734 care or treatment of the Patient.
735 E. This authorization expires upon resolution of
736 the claim or at the conclusion of any litigation
737 instituted in connection with the matter of the
738 presuit notice accompanying this authorization,
739 whichever occurs first.
740 F. The Patient understands that, without
741 exception, the Patient has the right to revoke this
742 authorization in writing. The Patient further
743 understands that the consequence of any such
744 revocation is that the presuit notice under s.
745 766.106(2), Florida Statutes, is deemed retroactively
746 void from the date of issuance, and any tolling effect
747 that the presuit notice may have had on any applicable
748 statute-of-limitations period is retroactively
749 rendered void.
750 G. The Patient understands that signing this
751 authorization is not a condition for continued
752 treatment, payment, enrollment, or eligibility for
753 health plan benefits.
754 H. The Patient understands that information used
755 or disclosed under this authorization may be subject
756 to additional disclosure by the recipient and may not
757 be protected by federal HIPAA privacy regulations.
759 Signature of Patient/Representative: ....
760 Date: ....
761 Name of Patient/Representative: ....
762 Description of Representative’s Authority: ....
763 Section 12. Subsection (2) of section 766.206, Florida
764 Statutes, is amended to read:
765 766.206 Presuit investigation of medical negligence claims
766 and defenses by court.—
767 (2) If the court finds that the notice of intent to
768 initiate litigation mailed by the claimant does is not comply in
769 compliance with the reasonable investigation requirements of ss.
770 766.201-766.212, including a review of the claim and a verified
771 written medical expert opinion by an expert witness as defined
772 in s. 766.202, or that the authorization accompanying the notice
773 of intent required under s. 766.1065 is not completed in good
774 faith by the claimant, the court shall dismiss the claim, and
775 the person who mailed such notice of intent, whether the
776 claimant or the claimant’s attorney, is shall be personally
777 liable for all attorney’s fees and costs incurred during the
778 investigation and evaluation of the claim, including the
779 reasonable attorney’s fees and costs of the defendant or the
780 defendant’s insurer.
781 Section 13. Section 768.0981, Florida Statutes, is amended
782 to read:
783 768.0981 Limitation on actions against insurers, prepaid
784 limited health service organizations, health maintenance
785 organizations, hospitals, or prepaid health clinics.—An entity
786 licensed or certified under chapter 395, chapter 624, chapter
787 636, or chapter 641 is shall not be liable for the medical
788 negligence of a health care provider with whom the licensed or
789 certified entity has entered into a contract, other than an
790 employee of such licensed or certified entity, unless the
791 licensed or certified entity expressly directs or exercises
792 actual control over the specific conduct that caused injury.
793 Section 14. This act shall take effect July 1, 2011.