CS/CS/CS/CS/HB 479

1
A bill to be entitled
2An act relating to medical malpractice; creating ss.
3458.3175, 459.0066, and 466.005, F.S.; requiring the
4Department of Health to issue expert witness certificates
5to certain physicians and dentists licensed outside of the
6state; providing application and certification
7requirements; establishing application fees; providing for
8the validity and use of certifications; exempting
9physicians and dentists issued certifications from certain
10licensure and fee requirements; amending ss. 458.331,
11459.015, and 466.028, F.S.; providing additional acts that
12constitute grounds for denial of a license or disciplinary
13action to which penalties apply; providing construction
14with respect to the doctrine of incorporation by
15reference; amending ss. 458.351 and 459.026, F.S.;
16requiring the Board of Medicine and the Board of
17Osteopathic Medicine to adopt within a specified period
18certain patient forms specifying cataract surgery risks;
19specifying that an incident resulting from risks disclosed
20in the patient form is not an adverse incident; providing
21for the execution and admissibility of the patient forms
22in civil and administrative proceedings; creating a
23rebuttable presumption that a physician disclosed cataract
24surgery risks if the patient form is executed; amending s.
25627.4147, F.S.; deleting a requirement that medical
26malpractice insurance contracts contain a clause
27authorizing the insurer to make and conclude certain
28offers within policy limits over the insured's veto;
29amending s. 766.102, F.S.; defining terms; providing that
30certain insurance information is not admissible as
31evidence in medical negligence actions; requiring that
32certain expert witnesses who provide certain expert
33testimony meet certain licensure or certification
34requirements; excluding a health care provider's failure
35to comply with or breach of federal requirements from
36evidence in medical negligence cases in the state;
37amending s. 766.106, F.S.; requiring a claimant for
38medical malpractice to execute an authorization form;
39revising provisions relating to discovery and
40admissibility; allowing a prospective medical malpractice
41defendant to interview a claimant's treating health care
42providers without the presence of the claimant or the
43claimant's legal representative; requiring a prospective
44defendant to provide 10 days' notice before such
45interviews; authorizing a prospective defendant to take
46unsworn statements of a claimant's health care providers;
47creating s. 766.1065, F.S.; requiring that presuit notice
48for medical negligence claims be accompanied by an
49authorization for release of protected health information;
50providing requirements for the form of such authorization;
51amending s. 766.110, F.S.; authorizing a health care
52facility to use scientific diagnostic disease
53methodologies that use information regarding specific
54diseases in health care facilities and that are adopted by
55the facility's medical review committee; amending s.
56766.206, F.S.; requiring dismissal of a medical
57malpractice claim if such authorization is not completed
58in good faith; amending s. 768.135, F.S.; providing
59immunity for volunteer team physicians under certain
60circumstances; providing an effective date.
61
62Be It Enacted by the Legislature of the State of Florida:
63
64     Section 1.  Section 458.3175, Florida Statutes, is created
65to read:
66     458.3175  Expert witness certificate.-
67     (1)(a)  The department shall issue a certificate
68authorizing a physician who holds an active and valid license to
69practice medicine in another state or a province of Canada to
70provide expert testimony in this state, if the physician submits
71to the department:
72     1.  A complete registration application containing the
73physician's legal name, mailing address, telephone number,
74business locations, the names of the jurisdictions where the
75physician holds an active and valid license to practice
76medicine, and the license number or other identifying number
77issued to the physician by the jurisdiction's licensing entity;
78and
79     2.  An application fee of $50.
80     (b)  The department shall approve an application for an
81expert witness certificate within 10 business days after receipt
82of the completed application and payment of the application fee
83if the applicant holds an active and valid license to practice
84medicine in another state or a province of Canada and has not
85had a previous expert witness certificate revoked by the board.
86An application is approved by default if the department does not
87act upon the application within the required period. A physician
88must notify the department in writing of his or her intent to
89rely on a certificate approved by default.
90     (c)  An expert witness certificate is valid for 2 years
91after the date of issuance.
92     (2)  An expert witness certificate authorizes the physician
93to whom the certificate is issued to do only the following:
94     (a)  Provide a verified written medical expert opinion as
95provided in s. 766.203.
96     (b)  Provide expert testimony about the prevailing
97professional standard of care in connection with medical
98negligence litigation pending in this state against a physician
99licensed under this chapter or chapter 459.
100     (3)  An expert witness certificate does not authorize a
101physician to engage in the practice of medicine as defined in s.
102458.305. A physician issued a certificate under this section who
103does not otherwise practice medicine in this state is not
104required to obtain a license under this chapter or pay any
105license fees, including, but not limited to, a neurological
106injury compensation assessment. An expert witness certificate
107shall be treated as a license in any disciplinary action, and
108the holder of an expert witness certificate shall be subject to
109discipline by the board.
110     Section 2.  Subsection (11) is added to section 458.331,
111Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
112of that section are redesignated as paragraphs (pp) through
113(rr), respectively, and a new paragraph (oo) is added to that
114subsection, to read:
115     458.331  Grounds for disciplinary action; action by the
116board and department.-
117     (1)  The following acts constitute grounds for denial of a
118license or disciplinary action, as specified in s. 456.072(2):
119     (oo)  Providing deceptive or fraudulent expert witness
120testimony related to the practice of medicine.
121     (11)  The purpose of this section is to facilitate uniform
122discipline for those acts made punishable under this section
123and, to this end, a reference to this section constitutes a
124general reference under the doctrine of incorporation by
125reference.
126     Section 3.  Subsection (6) of section 458.351, Florida
127Statutes, 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
130settings.-
131     (6)(a)  The board shall adopt rules establishing a standard
132informed consent form that sets forth the recognized specific
133risks related to cataract surgery. The board must propose such
134rules within 90 days after the effective date of this
135subsection.
136     (b)  Before formally proposing the rule, the board must
137consider information from physicians licensed under this chapter
138or chapter 459 regarding recognized specific risks related to
139cataract surgery and the standard informed consent forms adopted
140for use in the medical field by other states.
141     (c)  A patient's informed consent is not executed until the
142patient, or a person authorized by the patient to give consent,
143and a competent witness sign the form adopted by the board.
144     (d)  An incident resulting from recognized specific risks
145described in the signed consent form is not considered an
146adverse incident for purposes of s. 395.0197 and this section.
147     (e)  In a civil action or administrative proceeding against
148a physician based on his or her alleged failure to properly
149disclose the risks of cataract surgery, a patient's informed
150consent executed as provided in paragraph (c) on the form
151adopted by the board is admissible as evidence and creates a
152rebuttable presumption that the physician properly disclosed the
153risks.
154     Section 4.  Section 459.0066, Florida Statutes, is created
155to read:
156     459.0066  Expert witness certificate.-
157     (1)(a)  The department shall issue a certificate
158authorizing a physician who holds an active and valid license to
159practice osteopathic medicine in another state or a province of
160Canada to provide expert testimony in this state, if the
161physician submits to the department:
162     1.  A complete registration application containing the
163physician's legal name, mailing address, telephone number,
164business locations, the names of the jurisdictions where the
165physician holds an active and valid license to practice
166osteopathic medicine, and the license number or other
167identifying number issued to the physician by the jurisdiction's
168licensing entity; and
169     2.  An application fee of $50.
170     (b)  The department shall approve an application for an
171expert witness certificate within 10 business days after receipt
172of the completed application and payment of the application fee
173if the applicant holds an active and valid license to practice
174osteopathic medicine in another state or a province of Canada
175and has not had a previous expert witness certificate revoked by
176the board. An application is approved by default if the
177department does not act upon the application within the required
178period. A physician must notify the department in writing of his
179or her intent to rely on a certificate approved by default.
180     (c)  An expert witness certificate is valid for 2 years
181after the date of issuance.
182     (2)  An expert witness certificate authorizes the physician
183to whom the certificate is issued to do only the following:
184     (a)  Provide a verified written medical expert opinion as
185provided in s. 766.203.
186     (b)  Provide expert testimony about the prevailing
187professional standard of care in connection with medical
188negligence litigation pending in this state against a physician
189licensed under chapter 458 or this chapter.
190     (3)  An expert witness certificate does not authorize a
191physician to engage in the practice of osteopathic medicine as
192defined in s. 459.003. A physician issued a certificate under
193this section who does not otherwise practice osteopathic
194medicine in this state is not required to obtain a license under
195this chapter or pay any license fees, including, but not limited
196to, a neurological injury compensation assessment. An expert
197witness certificate shall be treated as a license in any
198disciplinary action, and the holder of an expert witness
199certificate shall be subject to discipline by the board.
200     Section 5.  Subsection (11) is added to section 459.015,
201Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
202of that section are redesignated as paragraphs (rr) through
203(tt), respectively, and a new paragraph (qq) is added to that
204subsection, to read:
205     459.015  Grounds for disciplinary action; action by the
206board and department.-
207     (1)  The following acts constitute grounds for denial of a
208license or disciplinary action, as specified in s. 456.072(2):
209     (qq)  Providing deceptive or fraudulent expert witness
210testimony related to the practice of osteopathic medicine.
211     (11)  The purpose of this section is to facilitate uniform
212discipline for those acts made punishable under this section
213and, to this end, a reference to this section constitutes a
214general reference under the doctrine of incorporation by
215reference.
216     Section 6.  Section 466.005, Florida Statutes, is created
217to read:
218     466.005  Expert witness certificate.-
219     (1)(a)  The department shall issue a certificate
220authorizing a dentist who holds an active and valid license to
221practice dentistry in another state or a province of Canada to
222provide expert testimony in this state, if the dentist submits
223to the department:
224     1.  A complete registration application containing the
225dentist's legal name, mailing address, telephone number,
226business locations, the names of the jurisdictions where the
227dentist holds an active and valid license to practice dentistry,
228and the license number or other identifying number issued to the
229dentist by the jurisdiction's licensing entity; and
230     2.  An application fee of $50.
231     (b)  The department shall approve an application for an
232expert witness certificate within 10 business days after receipt
233of the completed application and payment of the application fee
234if the applicant holds an active and valid license to practice
235dentistry in another state or a province of Canada and has not
236had a previous expert witness certificate revoked by the board.
237An application is approved by default if the department does not
238act upon the application within the required period. A dentist
239must notify the department in writing of his or her intent to
240rely on a certificate approved by default.
241     (c)  An expert witness certificate is valid for 2 years
242after the date of issuance.
243     (2)  An expert witness certificate authorizes the dentist
244to whom the certificate is issued to do only the following:
245     (a)  Provide a verified written medical expert opinion as
246provided in s. 766.203.
247     (b)  Provide expert testimony about the prevailing
248professional standard of care in connection with medical
249negligence litigation pending in this state against a dentist
250licensed under this chapter.
251     (3)  An expert witness certificate does not authorize a
252dentist to engage in the practice of dentistry as defined in s.
253466.003. A dentist issued a certificate under this section who
254does not otherwise practice dentistry in this state is not
255required to obtain a license under this chapter or pay any
256license fees. An expert witness certificate shall be treated as
257a license in any disciplinary action, and the holder of an
258expert witness certificate shall be subject to discipline by the
259board.
260     Section 7.  Subsection (8) is added to section 466.028,
261Florida Statutes, paragraph (ll) of subsection (1) of that
262section 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
265board.-
266     (1)  The following acts constitute grounds for denial of a
267license or disciplinary action, as specified in s. 456.072(2):
268     (ll)  Providing deceptive or fraudulent expert witness
269testimony related to the practice of dentistry.
270     (8)  The purpose of this section is to facilitate uniform
271discipline for those acts made punishable under this section
272and, to this end, a reference to this section constitutes a
273general reference under the doctrine of incorporation by
274reference.
275     Section 8.  Subsection (6) of section 459.026, Florida
276Statutes, 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
279settings.-
280     (6)(a)  The board shall adopt rules establishing a standard
281informed consent form that sets forth the recognized specific
282risks related to cataract surgery. The board must propose such
283rules within 90 days after the effective date of this
284subsection.
285     (b)  Before formally proposing the rule, the board must
286consider information from physicians licensed under chapter 458
287or this chapter regarding recognized specific risks related to
288cataract surgery and the standard informed consent forms adopted
289for use in the medical field by other states.
290     (c)  A patient's informed consent is not executed until the
291patient, or a person authorized by the patient to give consent,
292and a competent witness sign the form adopted by the board.
293     (d)  An incident resulting from recognized specific risks
294described in the signed consent form is not considered an
295adverse incident for purposes of s. 395.0197 and this section.
296     (e)  In a civil action or administrative proceeding against
297a physician based on his or her alleged failure to properly
298disclose the risks of cataract surgery, a patient's informed
299consent executed as provided in paragraph (c) on the form
300adopted by the board is admissible as evidence and creates a
301rebuttable presumption that the physician properly disclosed the
302risks.
303     Section 9.  Paragraph (b) of subsection (1) of section
304627.4147, Florida Statutes, is amended to read:
305     627.4147  Medical malpractice insurance contracts.-
306     (1)  In addition to any other requirements imposed by law,
307each self-insurance policy as authorized under s. 627.357 or s.
308624.462 or insurance policy providing coverage for claims
309arising out of the rendering of, or the failure to render,
310medical care or services, including those of the Florida Medical
311Malpractice Joint Underwriting Association, shall include:
312     (b)1.  Except as provided in subparagraph 2., a clause
313authorizing the insurer or self-insurer to determine, to make,
314and to conclude, without the permission of the insured, any
315offer of admission of liability and for arbitration pursuant to
316s. 766.106, settlement offer, or offer of judgment, if the offer
317is within the policy limits. It is against public policy for any
318insurance or self-insurance policy to contain a clause giving
319the insured the exclusive right to veto any offer for admission
320of liability and for arbitration made pursuant to s. 766.106,
321settlement offer, or offer of judgment, when such offer is
322within the policy limits. However, any offer of admission of
323liability, settlement offer, or offer of judgment made by an
324insurer or self-insurer shall be made in good faith and in the
325best interests of the insured.
326     2.a.  With respect to dentists licensed under chapter 466,
327A clause clearly stating whether or not the insured has the
328exclusive right to veto any offer of admission of liability and
329for arbitration pursuant to s. 766.106, settlement offer, or
330offer of judgment if the offer is within policy limits. An
331insurer or self-insurer shall not make or conclude, without the
332permission of the insured, any offer of admission of liability
333and for arbitration pursuant to s. 766.106, settlement offer, or
334offer of judgment, if such offer is outside the policy limits.
335However, any offer for admission of liability and for
336arbitration made under s. 766.106, settlement offer, or offer of
337judgment made by an insurer or self-insurer shall be made in
338good faith and in the best interest of the insured.
339     2.b.  If the policy contains a clause stating the insured
340does not have the exclusive right to veto any offer or admission
341of liability and for arbitration made pursuant to s. 766.106,
342settlement offer or offer of judgment, the insurer or self-
343insurer shall provide to the insured or the insured's legal
344representative by certified mail, return receipt requested, a
345copy of the final offer of admission of liability and for
346arbitration made pursuant to s. 766.106, settlement offer or
347offer of judgment and at the same time such offer is provided to
348the claimant. A copy of any final agreement reached between the
349insurer and claimant shall also be provided to the insurer or
350his or her legal representative by certified mail, return
351receipt requested not more than 10 days after affecting such
352agreement.
353     Section 10.  Subsections (3) and (5) of section 766.102,
354Florida Statutes, are amended, subsection (12) of that section
355is renumbered as subsection (14), and new subsections (12) and
356(13) are added to that section, to read:
357     766.102  Medical negligence; standards of recovery; expert
358witness.-
359     (3)(a)  As used in this subsection, the term:
360     1.  "Insurer" means any public or private insurer,
361including the Centers for Medicare and Medicaid Services.
362     2.  "Reimbursement determination" means an insurer's
363determination of the amount that the insurer will reimburse a
364health care provider for health care services.
365     3.  "Reimbursement policies" means an insurer's policies
366and procedures governing its decisions regarding health
367insurance coverage and method of payment and the data upon which
368such policies and procedures are based, including, but not
369limited to, data from national research groups and other patient
370safety data as defined in s. 766.1016.
371     (b)  The existence of a medical injury does shall not
372create any inference or presumption of negligence against a
373health care provider, and the claimant must maintain the burden
374of proving that an injury was proximately caused by a breach of
375the prevailing professional standard of care by the health care
376provider. Any records, policies, or testimony of an insurer's
377reimbursement policies or reimbursement determination regarding
378the care provided to the plaintiff are not admissible as
379evidence in any medical negligence action. However, the
380discovery of the presence of a foreign body, such as a sponge,
381clamp, forceps, surgical needle, or other paraphernalia commonly
382used in surgical, examination, or diagnostic procedures, shall
383be prima facie evidence of negligence on the part of the health
384care provider.
385     (5)  A person may not give expert testimony concerning the
386prevailing professional standard of care unless the that person
387is a licensed health care provider who holds an active and valid
388license and conducts a complete review of the pertinent medical
389records and meets the following criteria:
390     (a)  If the health care provider against whom or on whose
391behalf the testimony is offered is a specialist, the expert
392witness must:
393     1.  Specialize in the same specialty as the health care
394provider against whom or on whose behalf the testimony is
395offered; or specialize in a similar specialty that includes the
396evaluation, diagnosis, or treatment of the medical condition
397that is the subject of the claim and have prior experience
398treating similar patients; and
399     2.  Have devoted professional time during the 3 years
400immediately preceding the date of the occurrence that is the
401basis for the action to:
402     a.  The active clinical practice of, or consulting with
403respect to, the same or similar specialty that includes the
404evaluation, diagnosis, or treatment of the medical condition
405that is the subject of the claim and have prior experience
406treating similar patients;
407     b.  Instruction of students in an accredited health
408professional school or accredited residency or clinical research
409program in the same or similar specialty; or
410     c.  A clinical research program that is affiliated with an
411accredited health professional school or accredited residency or
412clinical research program in the same or similar specialty.
413     (b)  If the health care provider against whom or on whose
414behalf the testimony is offered is a general practitioner, the
415expert witness must have devoted professional time during the 5
416years immediately preceding the date of the occurrence that is
417the basis for the action to:
418     1.  The active clinical practice or consultation as a
419general practitioner;
420     2.  The instruction of students in an accredited health
421professional school or accredited residency program in the
422general practice of medicine; or
423     3.  A clinical research program that is affiliated with an
424accredited medical school or teaching hospital and that is in
425the general practice of medicine.
426     (c)  If the health care provider against whom or on whose
427behalf the testimony is offered is a health care provider other
428than a specialist or a general practitioner, the expert witness
429must have devoted professional time during the 3 years
430immediately preceding the date of the occurrence that is the
431basis for the action to:
432     1.  The active clinical practice of, or consulting with
433respect to, the same or similar health profession as the health
434care provider against whom or on whose behalf the testimony is
435offered;
436     2.  The instruction of students in an accredited health
437professional school or accredited residency program in the same
438or similar health profession in which the health care provider
439against whom or on whose behalf the testimony is offered; or
440     3.  A clinical research program that is affiliated with an
441accredited medical school or teaching hospital and that is in
442the same or similar health profession as the health care
443provider against whom or on whose behalf the testimony is
444offered.
445     (12)  If a physician licensed under chapter 458 or chapter
446459 or a dentist licensed under chapter 466 is the party against
447whom, or on whose behalf, expert testimony about the prevailing
448professional standard of care is offered, the expert witness
449must be licensed under chapter 458, chapter 459, or chapter 466
450or possess a valid expert witness certificate issued under s.
451458.3175, s. 459.0066, or s. 466.005.
452     (13)  A health care provider's failure to comply with or
453breach of any federal requirement is not admissible as evidence
454in any medical negligence case in this state.
455     Section 11.  Paragraph (a) of subsection (2), subsection
456(5), and paragraph (b) of subsection (6) of section 766.106,
457Florida Statutes, are amended to read:
458     766.106  Notice before filing action for medical
459negligence; presuit screening period; offers for admission of
460liability and for arbitration; informal discovery; review.-
461     (2)  PRESUIT NOTICE.-
462     (a)  After completion of presuit investigation pursuant to
463s. 766.203(2) and prior to filing a complaint for medical
464negligence, a claimant shall notify each prospective defendant
465by certified mail, return receipt requested, of intent to
466initiate litigation for medical negligence. Notice to each
467prospective defendant must include, if available, a list of all
468known health care providers seen by the claimant for the
469injuries complained of subsequent to the alleged act of
470negligence, all known health care providers during the 2-year
471period prior to the alleged act of negligence who treated or
472evaluated the claimant, and copies of all of the medical records
473relied upon by the expert in signing the affidavit, and the
474executed authorization form provided in s. 766.1065. The
475requirement of providing the list of known health care providers
476may not serve as grounds for imposing sanctions for failure to
477provide presuit discovery.
478     (5)  DISCOVERY AND ADMISSIBILITY.-A No statement,
479discussion, written document, report, or other work product
480generated by the presuit screening process is not discoverable
481or admissible in any civil action for any purpose by the
482opposing party. All participants, including, but not limited to,
483physicians, investigators, witnesses, and employees or
484associates of the defendant, are immune from civil liability
485arising from participation in the presuit screening process.
486This subsection does not prevent a physician licensed under
487chapter 458 or chapter 459 or a dentist licensed under chapter
488466 who submits a verified written expert medical opinion from
489being subject to denial of a license or disciplinary action
490under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
491466.028(1)(ll).
492     (6)  INFORMAL DISCOVERY.-
493     (b)  Informal discovery may be used by a party to obtain
494unsworn statements, the production of documents or things, and
495physical and mental examinations, as follows:
496     1.  Unsworn statements.-Any party may require other parties
497to appear for the taking of an unsworn statement. Such
498statements may be used only for the purpose of presuit screening
499and are not discoverable or admissible in any civil action for
500any purpose by any party. A party desiring to take the unsworn
501statement of any party must give reasonable notice in writing to
502all parties. The notice must state the time and place for taking
503the statement and the name and address of the party to be
504examined. Unless otherwise impractical, the examination of any
505party must be done at the same time by all other parties. Any
506party may be represented by counsel at the taking of an unsworn
507statement. An unsworn statement may be recorded electronically,
508stenographically, or on videotape. The taking of unsworn
509statements is subject to the provisions of the Florida Rules of
510Civil Procedure and may be terminated for abuses.
511     2.  Documents or things.-Any party may request discovery of
512documents or things. The documents or things must be produced,
513at the expense of the requesting party, within 20 days after the
514date of receipt of the request. A party is required to produce
515discoverable documents or things within that party's possession
516or control. Medical records shall be produced as provided in s.
517766.204.
518     3.  Physical and mental examinations.-A prospective
519defendant may require an injured claimant to appear for
520examination by an appropriate health care provider. The
521prospective defendant shall give reasonable notice in writing to
522all parties as to the time and place for examination. Unless
523otherwise impractical, a claimant is required to submit to only
524one examination on behalf of all potential defendants. The
525practicality of a single examination must be determined by the
526nature of the claimant's condition, as it relates to the
527liability of each prospective defendant. Such examination report
528is available to the parties and their attorneys upon payment of
529the reasonable cost of reproduction and may be used only for the
530purpose of presuit screening. Otherwise, such examination report
531is confidential and exempt from the provisions of s. 119.07(1)
532and s. 24(a), Art. I of the State Constitution.
533     4.  Written questions.-Any party may request answers to
534written questions, the number of which may not exceed 30,
535including subparts. A response must be made within 20 days after
536receipt of the questions.
537     5.  Unsworn statements of treating health care providers
538Medical information release.-The claimant must execute a medical
539information release that allows A prospective defendant or his
540or her legal representative may also to take unsworn statements
541of the claimant's treating health care providers physicians. The
542statements must be limited to those areas that are potentially
543relevant to the claim of personal injury or wrongful death.
544Subject to the procedural requirements of subparagraph 1., a
545prospective defendant may take unsworn statements from a
546claimant's treating physicians. Reasonable notice and
547opportunity to be heard must be given to the claimant or the
548claimant's legal representative before taking unsworn
549statements. The claimant or claimant's legal representative has
550the right to attend the taking of such unsworn statements.
551     Section 12.  Section 766.1065, Florida Statutes, is created
552to read:
553     766.1065  Authorization for release of protected health
554information.-
555     (1)  Presuit notice of intent to initiate litigation for
556medical negligence under s. 766.106(2) must be accompanied by an
557authorization for release of protected health information in the
558form specified by this section, authorizing the disclosure of
559protected health information that is potentially relevant to the
560claim of personal injury or wrongful death. The presuit notice
561is void if this authorization does not accompany the presuit
562notice and other materials required by s. 766.106(2).
563     (2)  If the authorization required by this section is
564revoked, the presuit notice under s. 766.106(2) is deemed
565retroactively void from the date of issuance, and any tolling
566effect that the presuit notice may have had on any applicable
567statute-of-limitations period is retroactively rendered void.
568     (3)  The authorization required by this section shall be in
569the following form and shall be construed in accordance with the
570"Standards for Privacy of Individually Identifiable Health
571Information" in 45 C.F.R. parts 160 and 164:
572
573
AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
574
575     A.  I,_(...Name of patient or authorized
576representative...) [hereinafter "Patient"], authorize
577that (...Name of health care provider to whom the
578presuit notice is directed...) and his/her/its
579insurer(s), self-insurer(s), and attorney(s) may
580obtain and disclose (within the parameters set out
581below) the protected health information described
582below for the following specific purposes:
583     1.  Facilitating the investigation and evaluation
584of the medical negligence claim described in the
585accompanying presuit notice; or
586     2.  Defending against any litigation arising out
587of the medical negligence claim made on the basis of
588the accompanying presuit notice.
589     B.  The health information obtained, used, or
590disclosed extends to, and includes, the verbal as well
591as the written and is described as follows:
592     1.  The health information in the custody of the
593following health care providers who have examined,
594evaluated, or treated the Patient in connection with
595injuries complained of after the alleged act of
596negligence: (List the name and current address of all
597health care providers). This authorization extends to
598any additional health care providers that may in the
599future evaluate, examine, or treat the Patient for the
600injuries complained of.
601     2.  The health information in the custody of the
602following health care providers who have examined,
603evaluated, or treated the Patient during a period
604commencing 2 years before the incident that is the
605basis of the accompanying presuit notice.
606
607(List the name and current address of such health care
608providers, if applicable.)
609
610     C.  This authorization does not apply to the
611following list of health care providers possessing
612health care information about the Patient because the
613Patient certifies that such health care information is
614not potentially relevant to the claim of personal
615injury or wrongful death that is the basis of the
616accompanying presuit notice.
617
618(List the name of each health care provider to whom
619this authorization does not apply and the inclusive
620dates of examination, evaluation, or treatment to be
621withheld from disclosure. If none, specify "none.")
622
623     D.  The persons or class of persons to whom the
624Patient authorizes such health information to be
625disclosed or by whom such health information is to be
626used:
627     1.  Any health care provider providing care or
628treatment for the Patient.
629     2.  Any liability insurer or self-insurer
630providing liability insurance coverage, self-
631insurance, or defense to any health care provider to
632whom presuit notice is given regarding the care and
633treatment of the Patient.
634     3.  Any consulting or testifying expert employed
635by or on behalf of (name of health care provider to
636whom presuit notice was given) and his/her/its
637insurer(s), self-insurer(s), or attorney(s) regarding
638to the matter of the presuit notice accompanying this
639authorization.
640     4.  Any attorney (including secretarial,
641clerical, or paralegal staff) employed by or on behalf
642of (name of health care provider to whom presuit
643notice was given) regarding the matter of the presuit
644notice accompanying this authorization.
645     5.  Any trier of the law or facts relating to any
646suit filed seeking damages arising out of the medical
647care or treatment of the Patient.
648     E.  This authorization expires upon resolution of
649the claim or at the conclusion of any litigation
650instituted in connection with the matter of the
651presuit notice accompanying this authorization,
652whichever occurs first.
653     F.  The Patient understands that, without
654exception, the Patient has the right to revoke this
655authorization in writing. The Patient further
656understands that the consequence of any such
657revocation is that the presuit notice under s.
658766.106(2), Florida Statutes, is deemed retroactively
659void from the date of issuance, and any tolling effect
660that the presuit notice may have had on any applicable
661statute-of-limitations period is retroactively
662rendered void.
663     G.  The Patient understands that signing this
664authorization is not a condition for continued
665treatment, payment, enrollment, or eligibility for
666health plan benefits.
667     H.  The Patient understands that information used
668or disclosed under this authorization may be subject
669to additional disclosure by the recipient and may not
670be protected by federal HIPAA privacy regulations.
671
672Signature of Patient/Representative: ....
673Date: ....
674Name of Patient/Representative: ....
675Description of Representative's Authority: ....
676     Section 13.  Subsection (3) is added to section 766.110,
677Florida Statutes, to read:
678     766.110  Liability of health care facilities.-
679     (3)  In order to ensure comprehensive risk management for
680diagnosis of disease, a health care facility, including a
681hospital or ambulatory surgical center, as defined in chapter
682395, may use scientific diagnostic disease methodologies that
683use information regarding specific diseases in health care
684facilities and that are adopted by the facility's medical review
685committee.
686     Section 14.  Subsection (2) of section 766.206, Florida
687Statutes, is amended to read:
688     766.206  Presuit investigation of medical negligence claims
689and defenses by court.-
690     (2)  If the court finds that the notice of intent to
691initiate litigation mailed by the claimant does is not comply in
692compliance with the reasonable investigation requirements of ss.
693766.201-766.212, including a review of the claim and a verified
694written medical expert opinion by an expert witness as defined
695in s. 766.202, or that the authorization accompanying the notice
696of intent required under s. 766.1065 is not completed in good
697faith by the claimant, the court shall dismiss the claim, and
698the person who mailed such notice of intent, whether the
699claimant or the claimant's attorney, is shall be personally
700liable for all attorney's fees and costs incurred during the
701investigation and evaluation of the claim, including the
702reasonable attorney's fees and costs of the defendant or the
703defendant's insurer.
704     Section 15.  Section 768.135, Florida Statutes, is amended
705to read:
706     768.135  Volunteer team physicians; immunity.-
707     (1)  A volunteer team physician is any person licensed to
708practice medicine pursuant to chapter 458, chapter 459, chapter
709460, chapter 461, or chapter 466:
710     (a)(1)  Who is acting in the capacity of a volunteer team
711physician in attendance at an athletic event sponsored by a
712public or private elementary or secondary school; and
713     (b)(2)  Who gratuitously and in good faith prior to the
714athletic event agrees to render emergency care or treatment to
715any participant in such event in connection with an emergency
716arising during or as the result of such event, without objection
717of such participant.,
718     (2)  A volunteer team physician is shall not be held liable
719for any civil damages as a result of such care or treatment or
720as a result of any act or failure to act in providing or
721arranging further medical treatment unless the when such care or
722treatment was rendered in a wrongful manner as a reasonably
723prudent person similarly licensed to practice medicine would
724have acted under the same or similar circumstances.
725     (3)  A practitioner licensed under chapter 458, chapter
726459, chapter 460, or s. 464.012 who gratuitously and in good
727faith conducts an evaluation pursuant to s. 1006.20(2)(c) is not
728liable for any civil damages arising from that evaluation unless
729the evaluation was conducted in a wrongful manner.
730     (4)  As used in this section, the term "wrongful manner"
731means in bad faith or with malicious purpose or in a manner
732exhibiting wanton and willful disregard of human rights, safety,
733or property, and shall be construed in conformity with the
734standard set forth in s. 768.28(9)(a).
735     Section 15.  This act shall take effect October 1, 2011,
736and applies to causes of action accruing on or after that date.


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