CS/CS/CS/CS/HB 479

1	A bill to be entitled
2	An act relating to medical malpractice; creating ss.
3	458.3175, 459.0066, and 466.005, F.S.; requiring the
4	Department of Health to issue expert witness certificates
5	to certain physicians and dentists licensed outside of the
6	state; providing application and certification
7	requirements; establishing application fees; providing for
8	the validity and use of certifications; exempting
9	physicians and dentists issued certifications from certain
10	licensure and fee requirements; amending ss. 458.331,
11	459.015, and 466.028, F.S.; providing additional acts that
12	constitute grounds for denial of a license or disciplinary
13	action to which penalties apply; providing construction
14	with respect to the doctrine of incorporation by
15	reference; amending ss. 458.351 and 459.026, F.S.;
16	requiring the Board of Medicine and the Board of
17	Osteopathic Medicine to adopt within a specified period
18	certain patient forms specifying cataract surgery risks;
19	specifying that an incident resulting from risks disclosed
20	in the patient form is not an adverse incident; providing
21	for the execution and admissibility of the patient forms
22	in civil and administrative proceedings; creating a
23	rebuttable presumption that a physician disclosed cataract
24	surgery risks if the patient form is executed; amending s.
25	627.4147, F.S.; deleting a requirement that medical
26	malpractice insurance contracts contain a clause
27	authorizing the insurer to make and conclude certain
28	offers within policy limits over the insured's veto;
29	amending s. 766.102, F.S.; defining terms; providing that
30	certain insurance information is not admissible as
31	evidence in medical negligence actions; establishing the
32	burden of proof that a claimant must meet in certain
33	damage claims against health care providers based on death
34	or personal injury; requiring that certain expert
35	witnesses who provide certain expert testimony meet
36	certain licensure or certification requirements; excluding
37	a health care provider's failure to comply with or breach
38	of federal requirements from evidence in medical
39	negligence cases in the state; amending s. 766.106, F.S.;
40	requiring a claimant for medical malpractice to execute an
41	authorization form; revising provisions relating to
42	discovery and admissibility; allowing a prospective
43	medical malpractice defendant to interview a claimant's
44	treating health care providers without the presence of the
45	claimant or the claimant's legal representative; requiring
46	a prospective defendant to provide 10 days' notice before
47	such interviews; authorizing a prospective defendant to
48	take unsworn statements of a claimant's health care
49	providers; creating s. 766.1065, F.S.; requiring that
50	presuit notice for medical negligence claims be
51	accompanied by an authorization for release of protected
52	health information; providing requirements for the form of
53	such authorization; amending s. 766.206, F.S.; requiring
54	dismissal of a medical malpractice claim if such
55	authorization is not completed in good faith; amending s.
56	768.0981, F.S.; limiting the liability of hospitals
57	related to certain medical negligence claims; amending s.
58	768.135, F.S.; providing immunity for volunteer team
59	physicians under certain circumstances; providing an
60	effective date.
61
62	Be It Enacted by the Legislature of the State of Florida:
63
64	Section 1.  Section 458.3175, Florida Statutes, is created
65	to read:
66	458.3175  Expert witness certificate.-
67	(1)(a)  The department shall issue a certificate
68	authorizing a physician who holds an active and valid license to
69	practice medicine in another state or a province of Canada to
70	provide expert testimony in this state, if the physician submits
71	to the department:
72	1.  A complete registration application containing the
73	physician's legal name, mailing address, telephone number,
74	business locations, the names of the jurisdictions where the
75	physician holds an active and valid license to practice
76	medicine, and the license number or other identifying number
77	issued to the physician by the jurisdiction's licensing entity;
78	and
79	2.  An application fee of $50.
80	(b)  The department shall approve an application for an
81	expert witness certificate within 10 business days after receipt
82	of the completed application and payment of the application fee
83	if the applicant holds an active and valid license to practice
84	medicine in another state or a province of Canada and has not
85	had a previous expert witness certificate revoked by the board.
86	An application is approved by default if the department does not
87	act upon the application within the required period. A physician
88	must notify the department in writing of his or her intent to
89	rely on a certificate approved by default.
90	(c)  An expert witness certificate is valid for 2 years
91	after the date of issuance.
92	(2)  An expert witness certificate authorizes the physician
93	to whom the certificate is issued to do only the following:
94	(a)  Provide a verified written medical expert opinion as
95	provided in s. 766.203.
96	(b)  Provide expert testimony about the prevailing
97	professional standard of care in connection with medical
98	negligence litigation pending in this state against a physician
99	licensed under this chapter or chapter 459.
100	(3)  An expert witness certificate does not authorize a
101	physician to engage in the practice of medicine as defined in s.
102	458.305. A physician issued a certificate under this section who
103	does not otherwise practice medicine in this state is not
104	required to obtain a license under this chapter or pay any
105	license fees, including, but not limited to, a neurological
106	injury compensation assessment. An expert witness certificate
107	shall be treated as a license in any disciplinary action, and
108	the holder of an expert witness certificate shall be subject to
109	discipline by the board.
110	Section 2.  Subsection (11) is added to section 458.331,
111	Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
112	of that section are redesignated as paragraphs (pp) through
113	(rr), respectively, and a new paragraph (oo) is added to that
114	subsection, to read:
115	458.331  Grounds for disciplinary action; action by the
116	board and department.-
117	(1)  The following acts constitute grounds for denial of a
118	license or disciplinary action, as specified in s. 456.072(2):
119	(oo)  Providing deceptive or fraudulent expert witness
120	testimony related to the practice of medicine.
121	(11)  The purpose of this section is to facilitate uniform
122	discipline for those acts made punishable under this section
123	and, to this end, a reference to this section constitutes a
124	general reference under the doctrine of incorporation by
125	reference.
126	Section 3.  Subsection (6) of section 458.351, Florida
127	Statutes, is renumbered as subsection (7), and a new subsection
128	(6) is added to that section to read:
129	458.351  Reports of adverse incidents in office practice
130	settings.-
131	(6)(a)  The board shall adopt rules establishing a standard
132	informed consent form that sets forth the recognized specific
133	risks related to cataract surgery. The board must propose such
134	rules within 90 days after the effective date of this
135	subsection.
136	(b)  Before formally proposing the rule, the board must
137	consider information from physicians licensed under this chapter
138	or chapter 459 regarding recognized specific risks related to
139	cataract surgery and the standard informed consent forms adopted
140	for use in the medical field by other states.
141	(c)  A patient's informed consent is not executed until the
142	patient, or a person authorized by the patient to give consent,
143	and a competent witness sign the form adopted by the board.
144	(d)  An incident resulting from recognized specific risks
145	described in the signed consent form is not considered an
146	adverse incident for purposes of s. 395.0197 and this section.
147	(e)  In a civil action or administrative proceeding against
148	a physician based on his or her alleged failure to properly
149	disclose the risks of cataract surgery, a patient's informed
150	consent executed as provided in paragraph (c) on the form
151	adopted by the board is admissible as evidence and creates a
152	rebuttable presumption that the physician properly disclosed the
153	risks.
154	Section 4.  Section 459.0066, Florida Statutes, is created
155	to read:
156	459.0066  Expert witness certificate.-
157	(1)(a)  The department shall issue a certificate
158	authorizing a physician who holds an active and valid license to
159	practice osteopathic medicine in another state or a province of
160	Canada to provide expert testimony in this state, if the
161	physician submits to the department:
162	1.  A complete registration application containing the
163	physician's legal name, mailing address, telephone number,
164	business locations, the names of the jurisdictions where the
165	physician holds an active and valid license to practice
166	osteopathic medicine, and the license number or other
167	identifying number issued to the physician by the jurisdiction's
168	licensing entity; and
169	2.  An application fee of $50.
170	(b)  The department shall approve an application for an
171	expert witness certificate within 10 business days after receipt
172	of the completed application and payment of the application fee
173	if the applicant holds an active and valid license to practice
174	osteopathic medicine in another state or a province of Canada
175	and has not had a previous expert witness certificate revoked by
176	the board. An application is approved by default if the
177	department does not act upon the application within the required
178	period. A physician must notify the department in writing of his
179	or her intent to rely on a certificate approved by default.
180	(c)  An expert witness certificate is valid for 2 years
181	after the date of issuance.
182	(2)  An expert witness certificate authorizes the physician
183	to whom the certificate is issued to do only the following:
184	(a)  Provide a verified written medical expert opinion as
185	provided in s. 766.203.
186	(b)  Provide expert testimony about the prevailing
187	professional standard of care in connection with medical
188	negligence litigation pending in this state against a physician
189	licensed under chapter 458 or this chapter.
190	(3)  An expert witness certificate does not authorize a
191	physician to engage in the practice of osteopathic medicine as
192	defined in s. 459.003. A physician issued a certificate under
193	this section who does not otherwise practice osteopathic
194	medicine in this state is not required to obtain a license under
195	this chapter or pay any license fees, including, but not limited
196	to, a neurological injury compensation assessment. An expert
197	witness certificate shall be treated as a license in any
198	disciplinary action, and the holder of an expert witness
199	certificate shall be subject to discipline by the board.
200	Section 5.  Subsection (11) is added to section 459.015,
201	Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
202	of that section are redesignated as paragraphs (rr) through
203	(tt), respectively, and a new paragraph (qq) is added to that
204	subsection, to read:
205	459.015  Grounds for disciplinary action; action by the
206	board and department.-
207	(1)  The following acts constitute grounds for denial of a
208	license or disciplinary action, as specified in s. 456.072(2):
209	(qq)  Providing deceptive or fraudulent expert witness
210	testimony related to the practice of osteopathic medicine.
211	(11)  The purpose of this section is to facilitate uniform
212	discipline for those acts made punishable under this section
213	and, to this end, a reference to this section constitutes a
214	general reference under the doctrine of incorporation by
215	reference.
216	Section 6.  Section 466.005, Florida Statutes, is created
217	to read:
218	466.005  Expert witness certificate.-
219	(1)(a)  The department shall issue a certificate
220	authorizing a dentist who holds an active and valid license to
221	practice dentistry in another state or a province of Canada to
222	provide expert testimony in this state, if the dentist submits
223	to the department:
224	1.  A complete registration application containing the
225	dentist's legal name, mailing address, telephone number,
226	business locations, the names of the jurisdictions where the
227	dentist holds an active and valid license to practice dentistry,
228	and the license number or other identifying number issued to the
229	dentist by the jurisdiction's licensing entity; and
230	2.  An application fee of $50.
231	(b)  The department shall approve an application for an
232	expert witness certificate within 10 business days after receipt
233	of the completed application and payment of the application fee
234	if the applicant holds an active and valid license to practice
235	dentistry in another state or a province of Canada and has not
236	had a previous expert witness certificate revoked by the board.
237	An application is approved by default if the department does not
238	act upon the application within the required period. A dentist
239	must notify the department in writing of his or her intent to
240	rely on a certificate approved by default.
241	(c)  An expert witness certificate is valid for 2 years
242	after the date of issuance.
243	(2)  An expert witness certificate authorizes the dentist
244	to whom the certificate is issued to do only the following:
245	(a)  Provide a verified written medical expert opinion as
246	provided in s. 766.203.
247	(b)  Provide expert testimony about the prevailing
248	professional standard of care in connection with medical
249	negligence litigation pending in this state against a dentist
250	licensed under this chapter.
251	(3)  An expert witness certificate does not authorize a
252	dentist to engage in the practice of dentistry as defined in s.
253	466.003. A dentist issued a certificate under this section who
254	does not otherwise practice dentistry in this state is not
255	required to obtain a license under this chapter or pay any
256	license fees. An expert witness certificate shall be treated as
257	a license in any disciplinary action, and the holder of an
258	expert witness certificate shall be subject to discipline by the
259	board.
260	Section 7.  Subsection (8) is added to section 466.028,
261	Florida Statutes, paragraph (ll) of subsection (1) of that
262	section is redesignated as paragraph (mm), and a new paragraph
263	(ll) is added to that subsection, to read:
264	466.028  Grounds for disciplinary action; action by the
265	board.-
266	(1)  The following acts constitute grounds for denial of a
267	license or disciplinary action, as specified in s. 456.072(2):
268	(ll)  Providing deceptive or fraudulent expert witness
269	testimony related to the practice of dentistry.
270	(8)  The purpose of this section is to facilitate uniform
271	discipline for those acts made punishable under this section
272	and, to this end, a reference to this section constitutes a
273	general reference under the doctrine of incorporation by
274	reference.
275	Section 8.  Subsection (6) of section 459.026, Florida
276	Statutes, is renumbered as subsection (7), and a new subsection
277	(6) is added to that section to read:
278	459.026  Reports of adverse incidents in office practice
279	settings.-
280	(6)(a)  The board shall adopt rules establishing a standard
281	informed consent form that sets forth the recognized specific
282	risks related to cataract surgery. The board must propose such
283	rules within 90 days after the effective date of this
284	subsection.
285	(b)  Before formally proposing the rule, the board must
286	consider information from physicians licensed under chapter 458
287	or this chapter regarding recognized specific risks related to
288	cataract surgery and the standard informed consent forms adopted
289	for use in the medical field by other states.
290	(c)  A patient's informed consent is not executed until the
291	patient, or a person authorized by the patient to give consent,
292	and a competent witness sign the form adopted by the board.
293	(d)  An incident resulting from recognized specific risks
294	described in the signed consent form is not considered an
295	adverse incident for purposes of s. 395.0197 and this section.
296	(e)  In a civil action or administrative proceeding against
297	a physician based on his or her alleged failure to properly
298	disclose the risks of cataract surgery, a patient's informed
299	consent executed as provided in paragraph (c) on the form
300	adopted by the board is admissible as evidence and creates a
301	rebuttable presumption that the physician properly disclosed the
302	risks.
303	Section 9.  Paragraph (b) of subsection (1) of section
304	627.4147, Florida Statutes, is amended to read:
305	627.4147  Medical malpractice insurance contracts.-
306	(1)  In addition to any other requirements imposed by law,
307	each self-insurance policy as authorized under s. 627.357 or s.
308	624.462 or insurance policy providing coverage for claims
309	arising out of the rendering of, or the failure to render,
310	medical care or services, including those of the Florida Medical
311	Malpractice Joint Underwriting Association, shall include:
312	(b)1.  Except as provided in subparagraph 2., a clause
313	authorizing the insurer or self-insurer to determine, to make,
314	and to conclude, without the permission of the insured, any
315	offer of admission of liability and for arbitration pursuant to
316	s. 766.106, settlement offer, or offer of judgment, if the offer
317	is within the policy limits. It is against public policy for any
318	insurance or self-insurance policy to contain a clause giving
319	the insured the exclusive right to veto any offer for admission
320	of liability and for arbitration made pursuant to s. 766.106,
321	settlement offer, or offer of judgment, when such offer is
322	within the policy limits. However, any offer of admission of
323	liability, settlement offer, or offer of judgment made by an
324	insurer or self-insurer shall be made in good faith and in the
325	best interests of the insured.
326	2.a.  With respect to dentists licensed under chapter 466,
327	A clause clearly stating whether or not the insured has the
328	exclusive right to veto any offer of admission of liability and
329	for arbitration pursuant to s. 766.106, settlement offer, or
330	offer of judgment if the offer is within policy limits. An
331	insurer or self-insurer shall not make or conclude, without the
332	permission of the insured, any offer of admission of liability
333	and for arbitration pursuant to s. 766.106, settlement offer, or
334	offer of judgment, if such offer is outside the policy limits.
335	However, any offer for admission of liability and for
336	arbitration made under s. 766.106, settlement offer, or offer of
337	judgment made by an insurer or self-insurer shall be made in
338	good faith and in the best interest of the insured.
339	2.b.  If the policy contains a clause stating the insured
340	does not have the exclusive right to veto any offer or admission
341	of liability and for arbitration made pursuant to s. 766.106,
342	settlement offer or offer of judgment, the insurer or self-
343	insurer shall provide to the insured or the insured's legal
344	representative by certified mail, return receipt requested, a
345	copy of the final offer of admission of liability and for
346	arbitration made pursuant to s. 766.106, settlement offer or
347	offer of judgment and at the same time such offer is provided to
348	the claimant. A copy of any final agreement reached between the
349	insurer and claimant shall also be provided to the insurer or
350	his or her legal representative by certified mail, return
351	receipt requested not more than 10 days after affecting such
352	agreement.
353	Section 10.  Subsections (3), (4), and (5) of section
354	766.102, Florida Statutes, are amended, subsection (12) of that
355	section is renumbered as subsection (14), and new subsections
356	(12) and (13) are added to that section, to read:
357	766.102  Medical negligence; standards of recovery; expert
358	witness.-
359	(3)(a)  As used in this subsection, the term:
360	1.  "Insurer" means any public or private insurer,
361	including the Centers for Medicare and Medicaid Services.
362	2.  "Reimbursement determination" means an insurer's
363	determination of the amount that the insurer will reimburse a
364	health care provider for health care services.
365	3.  "Reimbursement policies" means an insurer's policies
366	and procedures governing its decisions regarding health
367	insurance coverage and method of payment and the data upon which
368	such policies and procedures are based, including, but not
369	limited to, data from national research groups and other patient
370	safety data as defined in s. 766.1016.
371	(b)  The existence of a medical injury does shall not
372	create any inference or presumption of negligence against a
373	health care provider, and the claimant must maintain the burden
374	of proving that an injury was proximately caused by a breach of
375	the prevailing professional standard of care by the health care
376	provider. Any records, policies, or testimony of an insurer's
377	reimbursement policies or reimbursement determination regarding
378	the care provided to the plaintiff are not admissible as
379	evidence in any medical negligence action. However, the
380	discovery of the presence of a foreign body, such as a sponge,
381	clamp, forceps, surgical needle, or other paraphernalia commonly
382	used in surgical, examination, or diagnostic procedures, shall
383	be prima facie evidence of negligence on the part of the health
384	care provider.
385	(4)(a)  The Legislature is cognizant of the changing trends
386	and techniques for the delivery of health care in this state and
387	the discretion that is inherent in the diagnosis, care, and
388	treatment of patients by different health care providers. The
389	failure of a health care provider to order, perform, or
390	administer supplemental diagnostic tests is shall not be
391	actionable if the health care provider acted in good faith and
392	with due regard for the prevailing professional standard of
393	care.
394	(b)  In an action for damages based on death or personal
395	injury which alleges that such death or injury resulted from the
396	failure of a health care provider to order, perform, or
397	administer supplemental diagnostic tests, the claimant has the
398	burden of proving by clear and convincing evidence that the
399	alleged actions of the health care provider represented a breach
400	of the prevailing professional standard of care.
401	(5)  A person may not give expert testimony concerning the
402	prevailing professional standard of care unless the that person
403	is a licensed health care provider who holds an active and valid
404	license and conducts a complete review of the pertinent medical
405	records and meets the following criteria:
406	(a)  If the health care provider against whom or on whose
407	behalf the testimony is offered is a specialist, the expert
408	witness must:
409	1.  Specialize in the same specialty as the health care
410	provider against whom or on whose behalf the testimony is
411	offered; or specialize in a similar specialty that includes the
412	evaluation, diagnosis, or treatment of the medical condition
413	that is the subject of the claim and have prior experience
414	treating similar patients; and
415	2.  Have devoted professional time during the 3 years
416	immediately preceding the date of the occurrence that is the
417	basis for the action to:
418	a.  The active clinical practice of, or consulting with
419	respect to, the same or similar specialty that includes the
420	evaluation, diagnosis, or treatment of the medical condition
421	that is the subject of the claim and have prior experience
422	treating similar patients;
423	b.  Instruction of students in an accredited health
424	professional school or accredited residency or clinical research
425	program in the same or similar specialty; or
426	c.  A clinical research program that is affiliated with an
427	accredited health professional school or accredited residency or
428	clinical research program in the same or similar specialty.
429	(b)  If the health care provider against whom or on whose
430	behalf the testimony is offered is a general practitioner, the
431	expert witness must have devoted professional time during the 5
432	years immediately preceding the date of the occurrence that is
433	the basis for the action to:
434	1.  The active clinical practice or consultation as a
435	general practitioner;
436	2.  The instruction of students in an accredited health
437	professional school or accredited residency program in the
438	general practice of medicine; or
439	3.  A clinical research program that is affiliated with an
440	accredited medical school or teaching hospital and that is in
441	the general practice of medicine.
442	(c)  If the health care provider against whom or on whose
443	behalf the testimony is offered is a health care provider other
444	than a specialist or a general practitioner, the expert witness
445	must have devoted professional time during the 3 years
446	immediately preceding the date of the occurrence that is the
447	basis for the action to:
448	1.  The active clinical practice of, or consulting with
449	respect to, the same or similar health profession as the health
450	care provider against whom or on whose behalf the testimony is
451	offered;
452	2.  The instruction of students in an accredited health
453	professional school or accredited residency program in the same
454	or similar health profession in which the health care provider
455	against whom or on whose behalf the testimony is offered; or
456	3.  A clinical research program that is affiliated with an
457	accredited medical school or teaching hospital and that is in
458	the same or similar health profession as the health care
459	provider against whom or on whose behalf the testimony is
460	offered.
461	(12)  If a physician licensed under chapter 458 or chapter
462	459 or a dentist licensed under chapter 466 is the party against
463	whom, or on whose behalf, expert testimony about the prevailing
464	professional standard of care is offered, the expert witness
465	must be licensed under chapter 458, chapter 459, or chapter 466
466	or possess a valid expert witness certificate issued under s.
467	458.3175, s. 459.0066, or s. 466.005.
468	(13)  A health care provider's failure to comply with or
469	breach of any federal requirement is not admissible as evidence
470	in any medical negligence case in this state.
471	Section 11.  Paragraph (a) of subsection (2), subsection
472	(5), and paragraph (b) of subsection (6) of section 766.106,
473	Florida Statutes, are amended to read:
474	766.106  Notice before filing action for medical
475	negligence; presuit screening period; offers for admission of
476	liability and for arbitration; informal discovery; review.-
477	(2)  PRESUIT NOTICE.-
478	(a)  After completion of presuit investigation pursuant to
479	s. 766.203(2) and prior to filing a complaint for medical
480	negligence, a claimant shall notify each prospective defendant
481	by certified mail, return receipt requested, of intent to
482	initiate litigation for medical negligence. Notice to each
483	prospective defendant must include, if available, a list of all
484	known health care providers seen by the claimant for the
485	injuries complained of subsequent to the alleged act of
486	negligence, all known health care providers during the 2-year
487	period prior to the alleged act of negligence who treated or
488	evaluated the claimant, and copies of all of the medical records
489	relied upon by the expert in signing the affidavit, and the
490	executed authorization form provided in s. 766.1065. The
491	requirement of providing the list of known health care providers
492	may not serve as grounds for imposing sanctions for failure to
493	provide presuit discovery.
494	(5)  DISCOVERY AND ADMISSIBILITY.-A No statement,
495	discussion, written document, report, or other work product
496	generated by the presuit screening process is not discoverable
497	or admissible in any civil action for any purpose by the
498	opposing party. All participants, including, but not limited to,
499	physicians, investigators, witnesses, and employees or
500	associates of the defendant, are immune from civil liability
501	arising from participation in the presuit screening process.
502	This subsection does not prevent a physician licensed under
503	chapter 458 or chapter 459 or a dentist licensed under chapter
504	466 who submits a verified written expert medical opinion from
505	being subject to denial of a license or disciplinary action
506	under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
507	466.028(1)(ll).
508	(6)  INFORMAL DISCOVERY.-
509	(b)  Informal discovery may be used by a party to obtain
510	unsworn statements, the production of documents or things, and
511	physical and mental examinations, as follows:
512	1.  Unsworn statements.-Any party may require other parties
513	to appear for the taking of an unsworn statement. Such
514	statements may be used only for the purpose of presuit screening
515	and are not discoverable or admissible in any civil action for
516	any purpose by any party. A party desiring to take the unsworn
517	statement of any party must give reasonable notice in writing to
518	all parties. The notice must state the time and place for taking
519	the statement and the name and address of the party to be
520	examined. Unless otherwise impractical, the examination of any
521	party must be done at the same time by all other parties. Any
522	party may be represented by counsel at the taking of an unsworn
523	statement. An unsworn statement may be recorded electronically,
524	stenographically, or on videotape. The taking of unsworn
525	statements is subject to the provisions of the Florida Rules of
526	Civil Procedure and may be terminated for abuses.
527	2.  Documents or things.-Any party may request discovery of
528	documents or things. The documents or things must be produced,
529	at the expense of the requesting party, within 20 days after the
530	date of receipt of the request. A party is required to produce
531	discoverable documents or things within that party's possession
532	or control. Medical records shall be produced as provided in s.
533	766.204.
534	3.  Physical and mental examinations.-A prospective
535	defendant may require an injured claimant to appear for
536	examination by an appropriate health care provider. The
537	prospective defendant shall give reasonable notice in writing to
538	all parties as to the time and place for examination. Unless
539	otherwise impractical, a claimant is required to submit to only
540	one examination on behalf of all potential defendants. The
541	practicality of a single examination must be determined by the
542	nature of the claimant's condition, as it relates to the
543	liability of each prospective defendant. Such examination report
544	is available to the parties and their attorneys upon payment of
545	the reasonable cost of reproduction and may be used only for the
546	purpose of presuit screening. Otherwise, such examination report
547	is confidential and exempt from the provisions of s. 119.07(1)
548	and s. 24(a), Art. I of the State Constitution.
549	4.  Written questions.-Any party may request answers to
550	written questions, the number of which may not exceed 30,
551	including subparts. A response must be made within 20 days after
552	receipt of the questions.
553	5.  Ex parte interviews of treating health care providers.-
554	A prospective defendant or his or her legal representative may
555	interview the claimant's treating health care providers without
556	the presence of the claimant or the claimant's legal
557	representative. A prospective defendant or his or her legal
558	representative that intends to interview a claimant's health
559	care providers must provide the claimant with notice of such
560	intent at least 10 days prior to the interview.
561	6.5.  Unsworn statements of treating health care providers
562	Medical information release.-The claimant must execute a medical
563	information release that allows A prospective defendant or his
564	or her legal representative may also to take unsworn statements
565	of the claimant's treating health care providers physicians. The
566	statements must be limited to those areas that are potentially
567	relevant to the claim of personal injury or wrongful death.
568	Subject to the procedural requirements of subparagraph 1., a
569	prospective defendant may take unsworn statements from a
570	claimant's treating physicians. Reasonable notice and
571	opportunity to be heard must be given to the claimant or the
572	claimant's legal representative before taking unsworn
573	statements. The claimant or claimant's legal representative has
574	the right to attend the taking of such unsworn statements.
575	Section 12.  Section 766.1065, Florida Statutes, is created
576	to read:
577	766.1065  Authorization for release of protected health
578	information.-
579	(1)  Presuit notice of intent to initiate litigation for
580	medical negligence under s. 766.106(2) must be accompanied by an
581	authorization for release of protected health information in the
582	form specified by this section, authorizing the disclosure of
583	protected health information that is potentially relevant to the
584	claim of personal injury or wrongful death. The presuit notice
585	is void if this authorization does not accompany the presuit
586	notice and other materials required by s. 766.106(2).
587	(2)  If the authorization required by this section is
588	revoked, the presuit notice under s. 766.106(2) is deemed
589	retroactively void from the date of issuance, and any tolling
590	effect that the presuit notice may have had on any applicable
591	statute-of-limitations period is retroactively rendered void.
592	(3)  The authorization required by this section shall be in
593	the following form and shall be construed in accordance with the
594	"Standards for Privacy of Individually Identifiable Health
595	Information" in 45 C.F.R. parts 160 and 164:
596
597	AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
598
599	A.  I,_(...Name of patient or authorized
600	representative...) [hereinafter "Patient"], authorize
601	that (...Name of health care provider to whom the
602	presuit notice is directed...) and his/her/its
603	insurer(s), self-insurer(s), and attorney(s) may
604	obtain and disclose (within the parameters set out
605	below) the protected health information described
606	below for the following specific purposes:
607	1.  Facilitating the investigation and evaluation
608	of the medical negligence claim described in the
609	accompanying presuit notice; or
610	2.  Defending against any litigation arising out
611	of the medical negligence claim made on the basis of
612	the accompanying presuit notice.
613	B.  The health information obtained, used, or
614	disclosed extends to, and includes, the verbal as well
615	as the written and is described as follows:
616	1.  The health information in the custody of the
617	following health care providers who have examined,
618	evaluated, or treated the Patient in connection with
619	injuries complained of after the alleged act of
620	negligence: (List the name and current address of all
621	health care providers). This authorization extends to
622	any additional health care providers that may in the
623	future evaluate, examine, or treat the Patient for the
624	injuries complained of.
625	2.  The health information in the custody of the
626	following health care providers who have examined,
627	evaluated, or treated the Patient during a period
628	commencing 2 years before the incident that is the
629	basis of the accompanying presuit notice.
630
631	(List the name and current address of such health care
632	providers, if applicable.)
633
634	C.  This authorization does not apply to the
635	following list of health care providers possessing
636	health care information about the Patient because the
637	Patient certifies that such health care information is
638	not potentially relevant to the claim of personal
639	injury or wrongful death that is the basis of the
640	accompanying presuit notice.
641
642	(List the name of each health care provider to whom
643	this authorization does not apply and the inclusive
644	dates of examination, evaluation, or treatment to be
645	withheld from disclosure. If none, specify "none.")
646
647	D.  The persons or class of persons to whom the
648	Patient authorizes such health information to be
649	disclosed or by whom such health information is to be
650	used:
651	1.  Any health care provider providing care or
652	treatment for the Patient.
653	2.  Any liability insurer or self-insurer
654	providing liability insurance coverage, self-
655	insurance, or defense to any health care provider to
656	whom presuit notice is given regarding the care and
657	treatment of the Patient.
658	3.  Any consulting or testifying expert employed
659	by or on behalf of (name of health care provider to
660	whom presuit notice was given) and his/her/its
661	insurer(s), self-insurer(s), or attorney(s) regarding
662	to the matter of the presuit notice accompanying this
663	authorization.
664	4.  Any attorney (including secretarial,
665	clerical, or paralegal staff) employed by or on behalf
666	of (name of health care provider to whom presuit
667	notice was given) regarding the matter of the presuit
668	notice accompanying this authorization.
669	5.  Any trier of the law or facts relating to any
670	suit filed seeking damages arising out of the medical
671	care or treatment of the Patient.
672	E.  This authorization expires upon resolution of
673	the claim or at the conclusion of any litigation
674	instituted in connection with the matter of the
675	presuit notice accompanying this authorization,
676	whichever occurs first.
677	F.  The Patient understands that, without
678	exception, the Patient has the right to revoke this
679	authorization in writing. The Patient further
680	understands that the consequence of any such
681	revocation is that the presuit notice under s.
682	766.106(2), Florida Statutes, is deemed retroactively
683	void from the date of issuance, and any tolling effect
684	that the presuit notice may have had on any applicable
685	statute-of-limitations period is retroactively
686	rendered void.
687	G.  The Patient understands that signing this
688	authorization is not a condition for continued
689	treatment, payment, enrollment, or eligibility for
690	health plan benefits.
691	H.  The Patient understands that information used
692	or disclosed under this authorization may be subject
693	to additional disclosure by the recipient and may not
694	be protected by federal HIPAA privacy regulations.
695
696	Signature of Patient/Representative: ....
697	Date: ....
698	Name of Patient/Representative: ....
699	Description of Representative's Authority: ....
700	Section 13.  Subsection (2) of section 766.206, Florida
701	Statutes, is amended to read:
702	766.206  Presuit investigation of medical negligence claims
703	and defenses by court.-
704	(2)  If the court finds that the notice of intent to
705	initiate litigation mailed by the claimant does is not comply in
706	compliance with the reasonable investigation requirements of ss.
707	766.201-766.212, including a review of the claim and a verified
708	written medical expert opinion by an expert witness as defined
709	in s. 766.202, or that the authorization accompanying the notice
710	of intent required under s. 766.1065 is not completed in good
711	faith by the claimant, the court shall dismiss the claim, and
712	the person who mailed such notice of intent, whether the
713	claimant or the claimant's attorney, is shall be personally
714	liable for all attorney's fees and costs incurred during the
715	investigation and evaluation of the claim, including the
716	reasonable attorney's fees and costs of the defendant or the
717	defendant's insurer.
718	Section 14.  Section 768.0981, Florida Statutes, is amended
719	to read:
720	768.0981  Limitation on actions against insurers, prepaid
721	limited health service organizations, health maintenance
722	organizations, hospitals, or prepaid health clinics.-An entity
723	licensed or certified under chapter 395, chapter 624, chapter
724	636, or chapter 641 is shall not be liable for the medical
725	negligence of a health care provider with whom the licensed or
726	certified entity has entered into a contract, other than an
727	employee of such licensed or certified entity, unless the
728	licensed or certified entity expressly directs or exercises
729	actual control over the specific conduct that caused injury.
730	Section 15.  Section 768.135, Florida Statutes, is amended
731	to read:
732	768.135  Volunteer team physicians; immunity.-
733	(1)  A volunteer team physician is any person licensed to
734	practice medicine pursuant to chapter 458, chapter 459, chapter
735	460, chapter 461, or chapter 466:
736	(a)(1)  Who is acting in the capacity of a volunteer team
737	physician in attendance at an athletic event sponsored by a
738	public or private elementary or secondary school; and
739	(b)(2)  Who gratuitously and in good faith prior to the
740	athletic event agrees to render emergency care or treatment to
741	any participant in such event in connection with an emergency
742	arising during or as the result of such event, without objection
743	of such participant.,
744	(2)  A volunteer team physician is shall not be held liable
745	for any civil damages as a result of such care or treatment or
746	as a result of any act or failure to act in providing or
747	arranging further medical treatment unless the when such care or
748	treatment was rendered in a wrongful manner as a reasonably
749	prudent person similarly licensed to practice medicine would
750	have acted under the same or similar circumstances.
751	(3)  A practitioner licensed under chapter 458, chapter
752	459, chapter 460, or s. 464.012 who gratuitously and in good
753	faith conducts an evaluation pursuant to s. 1006.20(2)(c) is not
754	liable for any civil damages arising from that evaluation unless
755	the evaluation was conducted in a wrongful manner.
756	(4)  As used in this section, the term "wrongful manner"
757	means in bad faith or with malicious purpose or in a manner
758	exhibiting wanton and willful disregard of human rights, safety,
759	or property, and shall be construed in conformity with the
760	standard set forth in s. 768.28(9)(a).
761	Section 16.  This act shall take effect July 1, 2011.

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