CS/HB 479

1	A bill to be entitled
2	An act relating to medical malpractice; creating ss.
3	458.3175 and 459.0066, F.S.; requiring the Department of
4	Health to issue expert witness certificates to certain
5	physicians licensed outside of the state; providing
6	application and certification requirements; establishing
7	application fees; providing for the validity and use of
8	certifications; exempting physicians issued certifications
9	from certain licensure and fee requirements; amending ss.
10	458.331 and 459.015, F.S.; providing additional acts that
11	constitute grounds for denial of a license or disciplinary
12	action to which penalties apply; providing construction
13	with respect to the doctrine of incorporation by
14	reference; amending ss. 458.351 and 459.026, F.S.;
15	requiring the boards to adopt within a specified period
16	certain patient forms specifying cataract surgery risks;
17	specifying that an incident resulting from risks disclosed
18	in the patient form is not an adverse incident; providing
19	for the execution and admissibility of the patient forms
20	in civil and administrative proceedings; creating a
21	rebuttable presumption that a physician disclosed cataract
22	surgery risks if the patient form is executed; amending s.
23	627.4147, F.S.; deleting a requirement that medical
24	malpractice insurance contracts contain a clause
25	authorizing the insurer to make and conclude certain
26	offers within policy limits over the insured's veto;
27	amending s. 766.102, F.S.; defining terms; providing that
28	certain insurance information is not admissible as
29	evidence in medical negligence actions; requiring that
30	certain expert witnesses who provide certain expert
31	testimony meet certain licensure or certification
32	requirements; establishing the burden of proof that a
33	claimant must meet in certain damage claims against health
34	care providers based on death or personal injury;
35	excluding a health care provider's failure to comply with
36	or breach of federal requirements from evidence in medical
37	negligence cases in the state; amending s. 766.106, F.S.;
38	requiring claimants for medical malpractice to execute an
39	authorization form; allowing prospective medical
40	malpractice defendants to interview a claimant's treating
41	health care provider without notice to or the presence of
42	the claimant or the claimant's legal representative;
43	authorizing prospective defendants to take unsworn
44	statements of a claimant's health care provider; creating
45	s. 766.1065, F.S.; requiring that presuit notice for
46	medical negligence claims be accompanied by an
47	authorization for release of protected health information;
48	providing requirements for the form of such authorization;
49	amending s. 766.206, F.S.; requiring dismissal of a
50	medical malpractice claim if such authorization is not
51	completed in good faith; amending s. 768.0981, F.S.;
52	limiting the liability of hospitals related to certain
53	medical negligence claims; providing an effective date.
54
55	Be It Enacted by the Legislature of the State of Florida:
56
57	Section 1.  Section 458.3175, Florida Statutes, is created
58	to read:
59	458.3175  Expert witness certificate.-
60	(1)(a)  The department shall issue a certificate
61	authorizing a physician who holds an active and valid license to
62	practice medicine in another state or a province of Canada to
63	provide expert testimony in this state, if the physician submits
64	to the department:
65	1.  A complete registration application containing the
66	physician's legal name, mailing address, telephone number,
67	business locations, the names of the jurisdictions where the
68	physician holds an active and valid license to practice
69	medicine, and the license number or other identifying number
70	issued to the physician by the jurisdiction's licensing entity;
71	and
72	2.  An application fee of $50.
73	(b)  The department shall approve an application for an
74	expert witness certificate within 7 business days after receipt
75	of the completed application and payment of the application fee
76	if the applicant holds an active and valid license to practice
77	medicine in another state or a province of Canada and has not
78	had a previous expert witness certificate revoked by the board.
79	An application is approved by default if the department does not
80	act upon the application within the required period. A physician
81	must notify the department in writing of his or her intent to
82	rely on a certificate approved by default.
83	(c)  An expert witness certificate is valid for 2 years
84	after the date of issuance.
85	(2)  An expert witness certificate authorizes the physician
86	to whom the certificate is issued to do only the following:
87	(a)  Provide a verified written medical expert opinion as
88	provided in s. 766.203.
89	(b)  Provide expert testimony about the prevailing
90	professional standard of care in connection with medical
91	negligence litigation pending in this state against a physician
92	licensed under this chapter or chapter 459.
93	(3)  An expert witness certificate does not authorize a
94	physician to engage in the practice of medicine as defined in s.
95	458.305. A physician issued a certificate under this section who
96	does not otherwise practice medicine in this state is not
97	required to obtain a license under this chapter or pay any
98	license fees, including, but not limited to, a neurological
99	injury compensation assessment. An expert witness certificate
100	shall be treated as a license in any disciplinary action, and
101	the holder of an expert witness certificate shall be subject to
102	discipline by the board.
103	Section 2.  Subsection (11) is added to section 458.331,
104	Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
105	of that section are redesignated as paragraphs (pp) through
106	(rr), respectively, and a new paragraph (oo) is added to that
107	subsection, to read:
108	458.331  Grounds for disciplinary action; action by the
109	board and department.-
110	(1)  The following acts constitute grounds for denial of a
111	license or disciplinary action, as specified in s. 456.072(2):
112	(oo)  Providing misleading, deceptive, or fraudulent expert
113	witness testimony related to the practice of medicine.
114	(11)  The purpose of this section is to facilitate uniform
115	discipline for those acts made punishable under this section
116	and, to this end, a reference to this section constitutes a
117	general reference under the doctrine of incorporation by
118	reference.
119	Section 3.  Subsection (6) of section 458.351, Florida
120	Statutes, is renumbered as subsection (7), and a new subsection
121	(6) is added to that section, to read:
122	458.351  Reports of adverse incidents in office practice
123	settings.-
124	(6)(a)  The board shall adopt rules establishing a standard
125	informed consent form that sets forth the recognized specific
126	risks related to cataract surgery. The board must propose such
127	rules within 90 days after the effective date of this
128	subsection.
129	(b)  Before formally proposing the rule, the board must
130	consider information from physicians licensed under this chapter
131	or chapter 459 regarding recognized specific risks related to
132	cataract surgery and the standard informed consent forms adopted
133	for use in the medical field by other states.
134	(c)  A patient's informed consent is not executed until the
135	patient, or a person authorized by the patient to give consent,
136	and a competent witness sign the form adopted by the board.
137	(d)  An incident resulting from recognized specific risks
138	described in the signed consent form is not considered an
139	adverse incident for purposes of s. 395.0197 and this section.
140	(e)  In a civil action or administrative proceeding against
141	a physician based on his or her alleged failure to properly
142	disclose the risks of cataract surgery, a patient's informed
143	consent executed as provided in paragraph (c) on the form
144	adopted by the board is admissible as evidence and creates a
145	rebuttable presumption that the physician properly disclosed the
146	risks.
147	Section 4.  Section 459.0066, Florida Statutes, is created
148	to read:
149	459.0066  Expert witness certificate.-
150	(1)(a)  The department shall issue a certificate
151	authorizing a physician who holds an active and valid license to
152	practice osteopathic medicine in another state or a province of
153	Canada to provide expert testimony in this state, if the
154	physician submits to the department:
155	1.  A complete registration application containing the
156	physician's legal name, mailing address, telephone number,
157	business locations, the names of the jurisdictions where the
158	physician holds an active and valid license to practice
159	osteopathic medicine, and the license number or other
160	identifying number issued to the physician by the jurisdiction's
161	licensing entity; and
162	2.  An application fee of $50.
163	(b)  The department shall approve an application for an
164	expert witness certificate within 7 business days after receipt
165	of the completed application and payment of the application fee
166	if the applicant holds an active and valid license to practice
167	osteopathic medicine in another state or a province of Canada
168	and has not had a previous expert witness certificate revoked by
169	the board. An application is approved by default if the
170	department does not act upon the application within the required
171	period. A physician must notify the department in writing of his
172	or her intent to rely on a certificate approved by default.
173	(c)  An expert witness certificate is valid for 2 years
174	after the date of issuance.
175	(2)  An expert witness certificate authorizes the physician
176	to whom the certificate is issued to do only the following:
177	(a)  Provide a verified written medical expert opinion as
178	provided in s. 766.203.
179	(b)  Provide expert testimony about the prevailing
180	professional standard of care in connection with medical
181	negligence litigation pending in this state against a physician
182	licensed under chapter 458 or this chapter.
183	(3)  An expert witness certificate does not authorize a
184	physician to engage in the practice of osteopathic medicine as
185	defined in s. 459.003. A physician issued a certificate under
186	this section who does not otherwise practice osteopathic
187	medicine in this state is not required to obtain a license under
188	this chapter or pay any license fees, including, but not limited
189	to, a neurological injury compensation assessment. An expert
190	witness certificate shall be treated as a license in any
191	disciplinary action, and the holder of an expert witness
192	certificate shall be subject to discipline by the board.
193	Section 5.  Subsection (11) is added to section 459.015,
194	Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
195	of that section are redesignated as paragraphs (rr) through
196	(tt), respectively, and a new paragraph (qq) is added to that
197	subsection, to read:
198	459.015  Grounds for disciplinary action; action by the
199	board and department.-
200	(1)  The following acts constitute grounds for denial of a
201	license or disciplinary action, as specified in s. 456.072(2):
202	(qq)  Providing misleading, deceptive, or fraudulent expert
203	witness testimony related to the practice of osteopathic
204	medicine.
205	(11)  The purpose of this section is to facilitate uniform
206	discipline for those acts made punishable under this section
207	and, to this end, a reference to this section constitutes a
208	general reference under the doctrine of incorporation by
209	reference.
210	Section 6.  Subsection (6) of section 459.026, Florida
211	Statutes, is renumbered as subsection (7), and a new subsection
212	(6) is added to that section, to read:
213	459.026  Reports of adverse incidents in office practice
214	settings.-
215	(6)(a)  The board shall adopt rules establishing a standard
216	informed consent form that sets forth the recognized specific
217	risks related to cataract surgery. The board must propose such
218	rules within 90 days after the effective date of this
219	subsection.
220	(b)  Before formally proposing the rule, the board must
221	consider information from physicians licensed under chapter 458
222	or this chapter regarding recognized specific risks related to
223	cataract surgery and the standard informed consent forms adopted
224	for use in the medical field by other states.
225	(c)  A patient's informed consent is not executed until the
226	patient, or a person authorized by the patient to give consent,
227	and a competent witness sign the form adopted by the board.
228	(d)  An incident resulting from recognized specific risks
229	described in the signed consent form is not considered an
230	adverse incident for purposes of s. 395.0197 and this section.
231	(e)  In a civil action or administrative proceeding against
232	a physician based on his or her alleged failure to properly
233	disclose the risks of cataract surgery, a patient's informed
234	consent executed as provided in paragraph (c) on the form
235	adopted by the board is admissible as evidence and creates a
236	rebuttable presumption that the physician properly disclosed the
237	risks.
238	Section 7.  Paragraph (b) of subsection (1) of section
239	627.4147, Florida Statutes, is amended to read:
240	627.4147  Medical malpractice insurance contracts.-
241	(1)  In addition to any other requirements imposed by law,
242	each self-insurance policy as authorized under s. 627.357 or s.
243	624.462 or insurance policy providing coverage for claims
244	arising out of the rendering of, or the failure to render,
245	medical care or services, including those of the Florida Medical
246	Malpractice Joint Underwriting Association, shall include:
247	(b)1.  Except as provided in subparagraph 2., a clause
248	authorizing the insurer or self-insurer to determine, to make,
249	and to conclude, without the permission of the insured, any
250	offer of admission of liability and for arbitration pursuant to
251	s. 766.106, settlement offer, or offer of judgment, if the offer
252	is within the policy limits. It is against public policy for any
253	insurance or self-insurance policy to contain a clause giving
254	the insured the exclusive right to veto any offer for admission
255	of liability and for arbitration made pursuant to s. 766.106,
256	settlement offer, or offer of judgment, when such offer is
257	within the policy limits. However, any offer of admission of
258	liability, settlement offer, or offer of judgment made by an
259	insurer or self-insurer shall be made in good faith and in the
260	best interests of the insured.
261	2.a.  With respect to dentists licensed under chapter 466,
262	A clause clearly stating whether or not the insured has the
263	exclusive right to veto any offer of admission of liability and
264	for arbitration pursuant to s. 766.106, settlement offer, or
265	offer of judgment if the offer is within policy limits. An
266	insurer or self-insurer shall not make or conclude, without the
267	permission of the insured, any offer of admission of liability
268	and for arbitration pursuant to s. 766.106, settlement offer, or
269	offer of judgment, if such offer is outside the policy limits.
270	However, any offer for admission of liability and for
271	arbitration made under s. 766.106, settlement offer, or offer of
272	judgment made by an insurer or self-insurer shall be made in
273	good faith and in the best interest of the insured.
274	2.b.  If the policy contains a clause stating the insured
275	does not have the exclusive right to veto any offer or admission
276	of liability and for arbitration made pursuant to s. 766.106,
277	settlement offer or offer of judgment, the insurer or self-
278	insurer shall provide to the insured or the insured's legal
279	representative by certified mail, return receipt requested, a
280	copy of the final offer of admission of liability and for
281	arbitration made pursuant to s. 766.106, settlement offer or
282	offer of judgment and at the same time such offer is provided to
283	the claimant. A copy of any final agreement reached between the
284	insurer and claimant shall also be provided to the insurer or
285	his or her legal representative by certified mail, return
286	receipt requested not more than 10 days after affecting such
287	agreement.
288	Section 8.  Subsections (3), (4), and (5) of section
289	766.102, Florida Statutes, are amended, subsection (12) of that
290	section is renumbered as subsection (14), and new subsections
291	(12) and (13) are added to that section, to read:
292	766.102  Medical negligence; standards of recovery; expert
293	witness.-
294	(3)(a)  As used in this subsection, the term:
295	1.  "Insurer" means any public or private insurer,
296	including the Centers for Medicare and Medicaid Services.
297	2.  "Reimbursement determination" means an insurer's
298	determination of the amount that the insurer will reimburse a
299	health care provider for health care services.
300	3.  "Reimbursement policies" means an insurer's policies
301	and procedures governing its decisions regarding health
302	insurance coverage and method of payment and the data upon which
303	such policies and procedures are based, including, but not
304	limited to, data from national research groups and other patient
305	safety data as defined in s. 766.1016.
306	(b)  The existence of a medical injury does shall not
307	create any inference or presumption of negligence against a
308	health care provider, and the claimant must maintain the burden
309	of proving that an injury was proximately caused by a breach of
310	the prevailing professional standard of care by the health care
311	provider. Any records, policies, or testimony of an insurer's
312	reimbursement policies or reimbursement determination regarding
313	the care provided to the plaintiff are not admissible as
314	evidence in any medical negligence action. However, the
315	discovery of the presence of a foreign body, such as a sponge,
316	clamp, forceps, surgical needle, or other paraphernalia commonly
317	used in surgical, examination, or diagnostic procedures, shall
318	be prima facie evidence of negligence on the part of the health
319	care provider.
320	(4)(a)  The Legislature is cognizant of the changing trends
321	and techniques for the delivery of health care in this state and
322	the discretion that is inherent in the diagnosis, care, and
323	treatment of patients by different health care providers. The
324	failure of a health care provider to order, perform, or
325	administer supplemental diagnostic tests is shall not be
326	actionable if the health care provider acted in good faith and
327	with due regard for the prevailing professional standard of
328	care.
329	(b)  In an action for damages based on death or personal
330	injury which alleges that such death or injury resulted from the
331	failure of a health care provider to order, perform, or
332	administer supplemental diagnostic tests, the claimant has the
333	burden of proving by clear and convincing evidence that the
334	alleged actions of the health care provider represented a breach
335	of the prevailing professional standard of care.
336	(5)  A person may not give expert testimony concerning the
337	prevailing professional standard of care unless the that person
338	is a licensed health care provider who holds an active and valid
339	license and conducts a complete review of the pertinent medical
340	records and meets the following criteria:
341	(a)  If the health care provider against whom or on whose
342	behalf the testimony is offered is a specialist, the expert
343	witness must:
344	1.  Specialize in the same specialty as the health care
345	provider against whom or on whose behalf the testimony is
346	offered; or specialize in a similar specialty that includes the
347	evaluation, diagnosis, or treatment of the medical condition
348	that is the subject of the claim and have prior experience
349	treating similar patients; and
350	2.  Have devoted professional time during the 5 3 years
351	immediately preceding the date of the occurrence that is the
352	basis for the action to:
353	a.  The active clinical practice of, or consulting with
354	respect to, the same or similar specialty that includes the
355	evaluation, diagnosis, or treatment of the medical condition
356	that is the subject of the claim and have prior experience
357	treating similar patients;
358	b.  Instruction of students in an accredited health
359	professional school or accredited residency or clinical research
360	program in the same or similar specialty; or
361	c.  A clinical research program that is affiliated with an
362	accredited health professional school or accredited residency or
363	clinical research program in the same or similar specialty.
364	(b)  If the health care provider against whom or on whose
365	behalf the testimony is offered is a general practitioner, the
366	expert witness must have devoted professional time during the 5
367	years immediately preceding the date of the occurrence that is
368	the basis for the action to:
369	1.  The active clinical practice or consultation as a
370	general practitioner;
371	2.  The instruction of students in an accredited health
372	professional school or accredited residency program in the
373	general practice of medicine; or
374	3.  A clinical research program that is affiliated with an
375	accredited medical school or teaching hospital and that is in
376	the general practice of medicine.
377	(c)  If the health care provider against whom or on whose
378	behalf the testimony is offered is a health care provider other
379	than a specialist or a general practitioner, the expert witness
380	must have devoted professional time during the 5 3 years
381	immediately preceding the date of the occurrence that is the
382	basis for the action to:
383	1.  The active clinical practice of, or consulting with
384	respect to, the same or similar health profession as the health
385	care provider against whom or on whose behalf the testimony is
386	offered;
387	2.  The instruction of students in an accredited health
388	professional school or accredited residency program in the same
389	or similar health profession in which the health care provider
390	against whom or on whose behalf the testimony is offered; or
391	3.  A clinical research program that is affiliated with an
392	accredited medical school or teaching hospital and that is in
393	the same or similar health profession as the health care
394	provider against whom or on whose behalf the testimony is
395	offered.
396	(12)  If a physician licensed under chapter 458 or chapter
397	459 is the party against whom, or on whose behalf, expert
398	testimony about the prevailing professional standard of care is
399	offered, the expert witness must be licensed under chapter 458
400	or chapter 459 or possess a valid expert witness certificate
401	issued under s. 458.3175 or s. 459.0066.
402	(13)  A health care provider's failure to comply with or
403	breach of any federal requirement is not admissible as evidence
404	in any medical negligence case in this state.
405	Section 9.  Paragraph (a) of subsection (2), subsection
406	(5), and paragraph (b) of subsection (6) of section 766.106,
407	Florida Statutes, are amended to read:
408	766.106  Notice before filing action for medical
409	negligence; presuit screening period; offers for admission of
410	liability and for arbitration; informal discovery; review.-
411	(2)  PRESUIT NOTICE.-
412	(a)  After completion of presuit investigation pursuant to
413	s. 766.203(2) and prior to filing a complaint for medical
414	negligence, a claimant shall notify each prospective defendant
415	by certified mail, return receipt requested, of intent to
416	initiate litigation for medical negligence. Notice to each
417	prospective defendant must include, if available, a list of all
418	known health care providers seen by the claimant for the
419	injuries complained of subsequent to the alleged act of
420	negligence, all known health care providers during the 2-year
421	period prior to the alleged act of negligence who treated or
422	evaluated the claimant, and copies of all of the medical records
423	relied upon by the expert in signing the affidavit, and the
424	executed authorization form provided in s. 766.1065. The
425	requirement of providing the list of known health care providers
426	may not serve as grounds for imposing sanctions for failure to
427	provide presuit discovery.
428	(5) DISCOVERY AND ADMISSIBILITY.-A No statement,
429	discussion, written document, report, or other work product
430	generated by the presuit screening process is not discoverable
431	or admissible in any civil action for any purpose by the
432	opposing party. All participants, including, but not limited to,
433	physicians, investigators, witnesses, and employees or
434	associates of the defendant, are immune from civil liability
435	arising from participation in the presuit screening process.
436	This subsection does not prevent a physician licensed under
437	chapter 458 or chapter 459 who submits a verified written expert
438	medical opinion from being subject to denial of a license or
439	disciplinary action under s. 458.331(1)(oo) or s.
440	459.015(1)(qq).
441	(6)  INFORMAL DISCOVERY.-
442	(b)  Informal discovery may be used by a party to obtain
443	unsworn statements, the production of documents or things, and
444	physical and mental examinations, as follows:
445	1.  Unsworn statements.-Any party may require other parties
446	to appear for the taking of an unsworn statement. Such
447	statements may be used only for the purpose of presuit screening
448	and are not discoverable or admissible in any civil action for
449	any purpose by any party. A party desiring to take the unsworn
450	statement of any party must give reasonable notice in writing to
451	all parties. The notice must state the time and place for taking
452	the statement and the name and address of the party to be
453	examined. Unless otherwise impractical, the examination of any
454	party must be done at the same time by all other parties. Any
455	party may be represented by counsel at the taking of an unsworn
456	statement. An unsworn statement may be recorded electronically,
457	stenographically, or on videotape. The taking of unsworn
458	statements is subject to the provisions of the Florida Rules of
459	Civil Procedure and may be terminated for abuses.
460	2.  Documents or things.-Any party may request discovery of
461	documents or things. The documents or things must be produced,
462	at the expense of the requesting party, within 20 days after the
463	date of receipt of the request. A party is required to produce
464	discoverable documents or things within that party's possession
465	or control. Medical records shall be produced as provided in s.
466	766.204.
467	3.  Physical and mental examinations.-A prospective
468	defendant may require an injured claimant to appear for
469	examination by an appropriate health care provider. The
470	prospective defendant shall give reasonable notice in writing to
471	all parties as to the time and place for examination. Unless
472	otherwise impractical, a claimant is required to submit to only
473	one examination on behalf of all potential defendants. The
474	practicality of a single examination must be determined by the
475	nature of the claimant's condition, as it relates to the
476	liability of each prospective defendant. Such examination report
477	is available to the parties and their attorneys upon payment of
478	the reasonable cost of reproduction and may be used only for the
479	purpose of presuit screening. Otherwise, such examination report
480	is confidential and exempt from the provisions of s. 119.07(1)
481	and s. 24(a), Art. I of the State Constitution.
482	4.  Written questions.-Any party may request answers to
483	written questions, the number of which may not exceed 30,
484	including subparts. A response must be made within 20 days after
485	receipt of the questions.
486	5.  Ex parte interviews of treating health care providers.-
487	A prospective defendant or his or her legal representative may
488	interview the claimant's treating health care providers without
489	notice to or the presence of the claimant or the claimant's
490	legal representative.
491	6.5.  Unsworn statements of treating health care providers
492	Medical information release.-The claimant must execute a medical
493	information release that allows A prospective defendant or his
494	or her legal representative may also to take unsworn statements
495	of the claimant's treating health care providers physicians. The
496	statements must be limited to those areas that are potentially
497	relevant to the claim of personal injury or wrongful death.
498	Subject to the procedural requirements of subparagraph 1., a
499	prospective defendant may take unsworn statements from a
500	claimant's treating physicians. Reasonable notice and
501	opportunity to be heard must be given to the claimant or the
502	claimant's legal representative before taking unsworn
503	statements. The claimant or claimant's legal representative has
504	the right to attend the taking of such unsworn statements.
505	Section 10.  Section 766.1065, Florida Statutes, is created
506	to read:
507	766.1065  Authorization for release of protected health
508	information.-
509	(1)  Presuit notice of intent to initiate litigation for
510	medical negligence under s. 766.106(2) must be accompanied by an
511	authorization for release of protected health information in the
512	form specified by this section, authorizing the disclosure of
513	protected health information that is potentially relevant to the
514	claim of personal injury or wrongful death. The presuit notice
515	is void if this authorization does not accompany the presuit
516	notice and other materials required by s. 766.106(2).
517	(2)  If the authorization required by this section is
518	revoked, the presuit notice under s. 766.106(2) is deemed
519	retroactively void from the date of issuance, and any tolling
520	effect that the presuit notice may have had on any applicable
521	statute-of-limitations period is retroactively rendered void.
522	(3)  The authorization required by this section shall be in
523	the following form and shall be construed in accordance with the
524	"Standards for Privacy of Individually Identifiable Health
525	Information" in 45 C.F.R. parts 160 and 164:
526
527	AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
528
529	A.  I,_(...Name of patient or authorized
530	representative...) [hereinafter "Patient"], authorize that
531	(...Name of health care provider to whom the presuit
532	notice is directed...) and his/her/its insurer(s), self-
533	insurer(s), and attorney(s) may obtain and disclose
534	(within the parameters set out below) the protected health
535	information described below for the following specific
536	purposes:
537	1.  Facilitating the investigation and evaluation of
538	the medical negligence claim described in the accompanying
539	presuit notice; or
540	2.  Defending against any litigation arising out of
541	the medical negligence claim made on the basis of the
542	accompanying presuit notice.
543	B.  The health information obtained, used, or
544	disclosed extends to, and includes, the verbal as well as
545	the written and is described as follows:
546	1.  The health information in the custody of the
547	following health care providers who have examined,
548	evaluated, or treated the Patient in connection with
549	injuries complained of after the alleged act of
550	negligence: (List the name and current address of all
551	health care providers). This authorization extends to any
552	additional health care providers that may in the future
553	evaluate, examine, or treat the Patient for the injuries
554	complained of.
555	2.  The health information in the custody of the
556	following health care providers who have examined,
557	evaluated, or treated the Patient during a period
558	commencing 2 years before the incident which is the basis
559	of the accompanying presuit notice.
560
561	(List the name and current address of such health care
562	providers, if applicable.)
563
564	C.  This authorization does not apply to the
565	following list of health care providers possessing health
566	care information about the Patient because the Patient
567	certifies that such health care information is not
568	potentially relevant to the claim of personal injury or
569	wrongful death which is the basis of the accompanying
570	presuit notice.
571
572	(List the name of each health care provider to whom this
573	authorization does not apply and the inclusive dates of
574	examination, evaluation, or treatment to be withheld from
575	disclosure. If none, specify "none.")
576
577	D.  The persons or class of persons to whom the
578	Patient authorizes such health information to be disclosed
579	or by whom such health information is to be used:
580	1.  Any health care provider providing care or
581	treatment for the Patient.
582	2.  Any liability insurer or self-insurer providing
583	liability insurance coverage, self-insurance, or defense
584	to any health care provider to whom presuit notice is
585	given regarding the care and treatment of the Patient.
586	3.  Any consulting or testifying expert employed by
587	or on behalf of (name of health care provider to whom
588	presuit notice was given) his/her/its insurer(s), self-
589	insurer(s), or attorney(s) regarding to the matter of the
590	presuit notice accompanying this authorization.
591	4.  Any attorney (including secretarial, clerical, or
592	paralegal staff) employed by or on behalf of (name of
593	health care provider to whom presuit notice was given)
594	regarding the matter of the presuit notice accompanying
595	this authorization.
596	5.  Any trier of the law or facts relating to any
597	suit filed seeking damages arising out of the medical care
598	or treatment of the Patient.
599	E.  This authorization expires upon resolution of the
600	claim or at the conclusion of any litigation instituted in
601	connection with the matter of the presuit notice
602	accompanying this authorization, whichever occurs first.
603	F.  The Patient understands that, without exception,
604	the Patient has the right to revoke this authorization in
605	writing. The Patient further understands that the
606	consequence of any such revocation is that the presuit
607	notice under s. 766.106(2), Florida Statutes, is deemed
608	retroactively void from the date of issuance, and any
609	tolling effect that the presuit notice may have had on any
610	applicable statute-of-limitations period is retroactively
611	rendered void.
612	G.  The Patient understands that signing this
613	authorization is not a condition for continued treatment,
614	payment, enrollment, or eligibility for health plan
615	benefits.
616	H.  The Patient understands that information used or
617	disclosed under this authorization may be subject to
618	additional disclosure by the recipient and may not be
619	protected by federal HIPAA privacy regulations.
620
621	Signature of Patient/Representative: ....
622	Date: ....
623	Name of Patient/Representative: ....
624	Description of Representative's Authority: ....
625	Section 11.  Subsection (2) of section 766.206, Florida
626	Statutes, is amended to read:
627	766.206  Presuit investigation of medical negligence claims
628	and defenses by court.-
629	(2)  If the court finds that the notice of intent to
630	initiate litigation mailed by the claimant does is not comply in
631	compliance with the reasonable investigation requirements of ss.
632	766.201-766.212, including a review of the claim and a verified
633	written medical expert opinion by an expert witness as defined
634	in s. 766.202, or that the authorization accompanying the notice
635	of intent required under s. 766.1065 is not completed in good
636	faith by the claimant, the court shall dismiss the claim, and
637	the person who mailed such notice of intent, whether the
638	claimant or the claimant's attorney, shall be personally liable
639	for all attorney's fees and costs incurred during the
640	investigation and evaluation of the claim, including the
641	reasonable attorney's fees and costs of the defendant or the
642	defendant's insurer.
643	Section 12.  Section 768.0981, Florida Statutes, is amended
644	to read:
645	768.0981  Limitation on actions against insurers, prepaid
646	limited health service organizations, health maintenance
647	organizations, hospitals, or prepaid health clinics.-An entity
648	licensed or certified under chapter 395, chapter 624, chapter
649	636, or chapter 641 is shall not be liable for the medical
650	negligence of a health care provider with whom the licensed or
651	certified entity has entered into a contract, other than an
652	employee of such licensed or certified entity, unless the
653	licensed or certified entity expressly directs or exercises
654	actual control over the specific conduct that caused injury.
655	Section 13.  This act shall take effect July 1, 2011.

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