Amendment
Bill No. CS/CS/CS/CS/HB 479

Amendment No. 067903

CHAMBER ACTION
Senate		House
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1	Representative Steinberg offered the following:
2
3	Substitute Amendment for Amendment (290895) (with title
4	amendment)
5	Remove lines 398-560 and insert:
6	burden of proving by a preponderance of the evidence that the
7	alleged actions of the health care provider represented a breach
8	of the prevailing professional standard of care.
9	(5)  A person may not give expert testimony concerning the
10	prevailing professional standard of care unless the that person
11	is a licensed health care provider who holds an active and valid
12	license and conducts a complete review of the pertinent medical
13	records and meets the following criteria:
14	(a)  If the health care provider against whom or on whose
15	behalf the testimony is offered is a specialist, the expert
16	witness must:
17	1.  Specialize in the same specialty as the health care
18	provider against whom or on whose behalf the testimony is
19	offered; or specialize in a similar specialty that includes the
20	evaluation, diagnosis, or treatment of the medical condition
21	that is the subject of the claim and have prior experience
22	treating similar patients; and
23	2.  Have devoted professional time during the 3 years
24	immediately preceding the date of the occurrence that is the
25	basis for the action to:
26	a.  The active clinical practice of, or consulting with
27	respect to, the same or similar specialty that includes the
28	evaluation, diagnosis, or treatment of the medical condition
29	that is the subject of the claim and have prior experience
30	treating similar patients;
31	b.  Instruction of students in an accredited health
32	professional school or accredited residency or clinical research
33	program in the same or similar specialty; or
34	c.  A clinical research program that is affiliated with an
35	accredited health professional school or accredited residency or
36	clinical research program in the same or similar specialty.
37	(b)  If the health care provider against whom or on whose
38	behalf the testimony is offered is a general practitioner, the
39	expert witness must have devoted professional time during the 5
40	years immediately preceding the date of the occurrence that is
41	the basis for the action to:
42	1.  The active clinical practice or consultation as a
43	general practitioner;
44	2.  The instruction of students in an accredited health
45	professional school or accredited residency program in the
46	general practice of medicine; or
47	3.  A clinical research program that is affiliated with an
48	accredited medical school or teaching hospital and that is in
49	the general practice of medicine.
50	(c)  If the health care provider against whom or on whose
51	behalf the testimony is offered is a health care provider other
52	than a specialist or a general practitioner, the expert witness
53	must have devoted professional time during the 3 years
54	immediately preceding the date of the occurrence that is the
55	basis for the action to:
56	1.  The active clinical practice of, or consulting with
57	respect to, the same or similar health profession as the health
58	care provider against whom or on whose behalf the testimony is
59	offered;
60	2.  The instruction of students in an accredited health
61	professional school or accredited residency program in the same
62	or similar health profession in which the health care provider
63	against whom or on whose behalf the testimony is offered; or
64	3.  A clinical research program that is affiliated with an
65	accredited medical school or teaching hospital and that is in
66	the same or similar health profession as the health care
67	provider against whom or on whose behalf the testimony is
68	offered.
69	(12)  If a physician licensed under chapter 458 or chapter
70	459 or a dentist licensed under chapter 466 is the party against
71	whom, or on whose behalf, expert testimony about the prevailing
72	professional standard of care is offered, the expert witness
73	must be licensed under chapter 458, chapter 459, or chapter 466
74	or possess a valid expert witness certificate issued under s.
75	458.3175, s. 459.0066, or s. 466.005.
76	(13)  A health care provider's failure to comply with or
77	breach of any federal requirement is not admissible as evidence
78	in any medical negligence case in this state.
79	Section 11.  Paragraph (a) of subsection (2), subsection
80	(5), and paragraph (b) of subsection (6) of section 766.106,
81	Florida Statutes, are amended to read:
82	766.106  Notice before filing action for medical
83	negligence; presuit screening period; offers for admission of
84	liability and for arbitration; informal discovery; review.-
85	(2)  PRESUIT NOTICE.-
86	(a)  After completion of presuit investigation pursuant to
87	s. 766.203(2) and prior to filing a complaint for medical
88	negligence, a claimant shall notify each prospective defendant
89	by certified mail, return receipt requested, of intent to
90	initiate litigation for medical negligence. Notice to each
91	prospective defendant must include, if available, a list of all
92	known health care providers seen by the claimant for the
93	injuries complained of subsequent to the alleged act of
94	negligence, all known health care providers during the 2-year
95	period prior to the alleged act of negligence who treated or
96	evaluated the claimant, and copies of all of the medical records
97	relied upon by the expert in signing the affidavit, and the
98	executed authorization form provided in s. 766.1065. The
99	requirement of providing the list of known health care providers
100	may not serve as grounds for imposing sanctions for failure to
101	provide presuit discovery.
102	(5)  DISCOVERY AND ADMISSIBILITY.-A No statement,
103	discussion, written document, report, or other work product
104	generated by the presuit screening process is not discoverable
105	or admissible in any civil action for any purpose by the
106	opposing party. All participants, including, but not limited to,
107	physicians, investigators, witnesses, and employees or
108	associates of the defendant, are immune from civil liability
109	arising from participation in the presuit screening process.
110	This subsection does not prevent a physician licensed under
111	chapter 458 or chapter 459 or a dentist licensed under chapter
112	466 who submits a verified written expert medical opinion from
113	being subject to denial of a license or disciplinary action
114	under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
115	466.028(1)(ll).
116	(6)  INFORMAL DISCOVERY.-
117	(b)  Informal discovery may be used by a party to obtain
118	unsworn statements, the production of documents or things, and
119	physical and mental examinations, as follows:
120	1.  Unsworn statements.-Any party may require other parties
121	to appear for the taking of an unsworn statement. Such
122	statements may be used only for the purpose of presuit screening
123	and are not discoverable or admissible in any civil action for
124	any purpose by any party. A party desiring to take the unsworn
125	statement of any party must give reasonable notice in writing to
126	all parties. The notice must state the time and place for taking
127	the statement and the name and address of the party to be
128	examined. Unless otherwise impractical, the examination of any
129	party must be done at the same time by all other parties. Any
130	party may be represented by counsel at the taking of an unsworn
131	statement. An unsworn statement may be recorded electronically,
132	stenographically, or on videotape. The taking of unsworn
133	statements is subject to the provisions of the Florida Rules of
134	Civil Procedure and may be terminated for abuses.
135	2.  Documents or things.-Any party may request discovery of
136	documents or things. The documents or things must be produced,
137	at the expense of the requesting party, within 20 days after the
138	date of receipt of the request. A party is required to produce
139	discoverable documents or things within that party's possession
140	or control. Medical records shall be produced as provided in s.
141	766.204.
142	3.  Physical and mental examinations.-A prospective
143	defendant may require an injured claimant to appear for
144	examination by an appropriate health care provider. The
145	prospective defendant shall give reasonable notice in writing to
146	all parties as to the time and place for examination. Unless
147	otherwise impractical, a claimant is required to submit to only
148	one examination on behalf of all potential defendants. The
149	practicality of a single examination must be determined by the
150	nature of the claimant's condition, as it relates to the
151	liability of each prospective defendant. Such examination report
152	is available to the parties and their attorneys upon payment of
153	the reasonable cost of reproduction and may be used only for the
154	purpose of presuit screening. Otherwise, such examination report
155	is confidential and exempt from the provisions of s. 119.07(1)
156	and s. 24(a), Art. I of the State Constitution.
157	4.  Written questions.-Any party may request answers to
158	written questions, the number of which may not exceed 30,
159	including subparts. A response must be made within 20 days after
160	receipt of the questions.
161	5.  Interviews of treating health care providers.-A
162	prospective defendant or his or her legal representative that
163	intends to interview a claimant's health care providers must
164	provide the claimant with notice of such intent at least 10 days
165	prior to the interview and provide the claimant and the
166	claimant's legal representative the right to attend the
167	interview.
168
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170	T I T L E  A M E N D M E N T
171	Remove lines 42-45 and insert:
172	discovery and admissibility; requiring

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