CS/HB 321

1	A bill to be entitled
2	An act relating to abortion; amending s. 390.0111, F.S.;
3	requiring a physician performing an abortion to, if the
4	gestational age of the fetus is determined to be 22 weeks
5	or more, provide specified information to the woman on
6	whom the procedure is to be performed; requiring a
7	physician to offer to administer an anesthetic or
8	analgesic to the fetus if an abortion is to be performed
9	on a fetus whose gestational age is 22 weeks or more;
10	providing an exception for medical emergency; providing
11	for civil actions by certain persons for violations of
12	specified provisions related to informed consent and fetal
13	anesthesia; providing for award of attorney's fees in
14	certain circumstances; providing that such an action is
15	not subject to specified medical malpractice provisions;
16	specifying an applicable statute of limitations; amending
17	s. 390.012, F.S.; providing for rulemaking concerning use
18	of general and local anesthesia in certain abortion
19	clinics for the pregnant woman and for the fetus;
20	providing an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Subsections (9) through (11) of section
25	390.0111, Florida Statutes, are renumbered as subsections (10)
26	through (12), respectively, new subsections (9) and (13) are
27	added to that section, and subsection (3) of that section is
28	amended, to read:
29	390.0111  Termination of pregnancies.-
30	(3)  CONSENTS REQUIRED.-A termination of pregnancy may not
31	be performed or induced except with the voluntary and informed
32	written consent of the pregnant woman or, in the case of a
33	mental incompetent, the voluntary and informed written consent
34	of her court-appointed guardian.
35	(a)  Except in the case of a medical emergency, consent to
36	a termination of pregnancy is voluntary and informed only if:
37	1.  The physician who is to perform the procedure, or the
38	referring physician, has, at a minimum, orally, in person,
39	informed the woman of:
40	a.  The nature and risks of undergoing or not undergoing
41	the proposed procedure that a reasonable patient would consider
42	material to making a knowing and willful decision of whether to
43	terminate a pregnancy.
44	b.  The probable gestational age of the fetus at the time
45	the termination of pregnancy is to be performed.
46	c.  If the gestational age of the fetus is determined to be
47	22 weeks or more, the ability of the fetus to feel pain. This
48	information shall include, but need not be limited to, the
49	following:
50	(I)  By 22 weeks gestational age, a fetus possesses all the
51	anatomical structures, including pain receptors, spinal cord,
52	nerve tracts, thalamus, and cortex, that are necessary in order
53	to feel pain.
54	(II)  A description of the actual steps in the abortion
55	procedure to be performed or induced, and at which steps the
56	abortion procedure could be painful to the fetus.
57	(III)  There is evidence that by 22 weeks of gestational
58	age, fetuses seek to evade certain stimuli in a manner that in
59	an infant or adult would be interpreted as a response to pain.
60	(IV)  Anesthesia is given to fetuses who are 22 weeks or
61	more gestational age who undergo prenatal surgery.
62	(V)  Anesthesia is given to premature children who are 22
63	weeks or more gestational age who undergo surgery;
64	(VI)  Anesthesia or analgesics are available in order to
65	minimize or alleviate the pain to the fetus.
66	(VII)  The medical risks associated with the particular
67	anesthetic or analgesic.
68	d.c.  The medical risks to the woman and fetus of carrying
69	the pregnancy to term.
70	2.  Printed materials prepared and provided by the
71	department have been provided to the pregnant woman, if she
72	chooses to view these materials, including:
73	a.  A description of the fetus.
74	b.  A list of agencies that offer alternatives to
75	terminating the pregnancy.
76	c.  Detailed information on the availability of medical
77	assistance benefits for prenatal care, childbirth, and neonatal
78	care.
79	3.  The woman acknowledges in writing, before the
80	termination of pregnancy, that the information required to be
81	provided under this subsection has been provided.
82
83	Nothing in this paragraph is intended to prohibit a physician
84	from providing any additional information which the physician
85	deems material to the woman's informed decision to terminate her
86	pregnancy.
87	(b)  In the event a medical emergency exists and a
88	physician cannot comply with the requirements for informed
89	consent, a physician may terminate a pregnancy if he or she has
90	obtained at least one corroborative medical opinion attesting to
91	the medical necessity for emergency medical procedures and to
92	the fact that to a reasonable degree of medical certainty the
93	continuation of the pregnancy would threaten the life of the
94	pregnant woman. In the event no second physician is available
95	for a corroborating opinion, the physician may proceed but shall
96	document reasons for the medical necessity in the patient's
97	medical records.
98	(c)  Violation of this subsection by a physician
99	constitutes grounds for disciplinary action under s. 458.331 or
100	s. 459.015. Substantial compliance or reasonable belief that
101	complying with the requirements of informed consent would
102	threaten the life or health of the patient is a defense to any
103	action brought under this paragraph.
104	(9)  FETAL ANESTHESIA.-Except in the case of a medical
105	emergency, as defined in s. 390.01114(2)(d), before an abortion
106	is performed on a fetus whose gestational age is 22 weeks or
107	more, the physician performing the abortion shall offer to
108	administer an anesthetic or analgesic to the fetus. The
109	physician shall document in the patient's medical history file
110	whether the patient has accepted or declined fetal anesthetic or
111	analgesic.
112	(13)  CIVIL ACTION; REMEDIES.-Any woman upon whom an
113	abortion was performed in violation of sub-subparagraph
114	(3)(a)1.c. or subsection (9) or the father of a fetus who was
115	the subject of such an abortion shall have a cause of action for
116	negligence. The action may be brought in any court of competent
117	jurisdiction. Any plaintiff who prevails in any such action for
118	any amount is entitled to recover reasonable attorney's fees,
119	costs of the action, and damages, unless the court finds that
120	the plaintiff has acted in bad faith or with malicious purpose
121	or that there was a complete absence of a justiciable issue of
122	either law or fact. A prevailing defendant is entitled to
123	recover reasonable attorney's fees under s. 57.105 only if the
124	court determines that the plaintiff's claim involved a complete
125	absence of justiciable law or fact. The remedies provided in
126	this section are in addition to other legal and administrative
127	remedies available to the woman or the father. Any action
128	brought pursuant to this subsection is not a claim for medical
129	malpractice, and chapter 766 does not apply. The statute of
130	limitations in s. 95.11(3) applies to an action under this
131	subsection.
132	Section 2.  Paragraph (e) of subsection (3) of section
133	390.012, Florida Statutes, is amended to read:
134	390.012 Powers of agency; rules; disposal of fetal
135	remains.-
136	(3)  For clinics that perform or claim to perform abortions
137	after the first trimester of pregnancy, the agency shall adopt
138	rules pursuant to ss. 120.536(1) and 120.54 to implement the
139	provisions of this chapter, including the following:
140	(e)  Rules relating to the abortion procedure. At a
141	minimum, these rules shall require:
142	1.  That a physician, registered nurse, licensed practical
143	nurse, advanced registered nurse practitioner, or physician
144	assistant is available to all patients throughout the abortion
145	procedure.
146	2.  Standards for the safe conduct of abortion procedures
147	that conform to obstetric standards in keeping with established
148	standards of care regarding the estimation of fetal age as
149	defined in rule.
150	3.  Appropriate use of general and local anesthesia,
151	analgesia, and sedation if ordered by the physician, for the
152	pregnant woman and for the fetus.
153	4.  Appropriate precautions, such as the establishment of
154	intravenous access at least for patients undergoing post-first
155	trimester abortions.
156	5.  Appropriate monitoring of the vital signs and other
157	defined signs and markers of the patient's status throughout the
158	abortion procedure and during the recovery period until the
159	patient's condition is deemed to be stable in the recovery room.
160	Section 3.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.