HB 385

A bill to be entitled
2An act relating to sovereign immunity; providing
3legislative findings and intent; amending s. 768.28,
4F.S.; providing sovereign immunity to emergency health
5care providers acting pursuant to obligations imposed
6by specified statutes; providing an exception;
7providing that emergency health care providers are
8agents of the state and requiring them to indemnify
9the state up to the specified liability limits;
10providing for sanctions against emergency health care
11providers who fail to comply with indemnification
12obligations; providing definitions; providing
13applicability; providing an effective date.
15Be It Enacted by the Legislature of the State of Florida:
17     Section 1.  Legislative findings and intent.-
18     (1)  The Legislature finds and declares it to be of vital
19importance that emergency services and care be provided by
20hospitals, physicians, and emergency medical services providers
21to every person in need of such care. The Legislature finds that
22providers of emergency services and care are critical elements
23in responding to disaster and emergency situations that may
24affect local communities, the state, and the country. The
25Legislature recognizes the importance of maintaining a viable
26system of providing for the emergency medical needs of the
27state's residents and visitors. The Legislature and the Federal
28Government have required such providers of emergency medical
29services and care to provide emergency services and care to all
30persons who present themselves to hospitals seeking such care.
31     (2)  The Legislature has further mandated that emergency
32medical treatment may not be denied by emergency medical
33services providers to persons who have or are likely to have an
34emergency medical condition. Such governmental requirements have
35imposed a unilateral obligation for providers of emergency
36services and care to provide services to all persons seeking
37emergency care without ensuring payment or other consideration
38for provision of such care. The Legislature also recognizes that
39providers of emergency services and care provide a significant
40amount of uncompensated emergency medical care in furtherance of
41such governmental interest.
42     (3)  The Legislature finds that a significant proportion of
43the residents of this state who are uninsured or are Medicaid or
44Medicare recipients are unable to access needed health care on
45an elective basis because health care providers fear the
46increased risk of medical malpractice liability. The Legislature
47finds that such patients, in order to obtain medical care, are
48frequently forced to seek care through providers of emergency
49medical services and care.
50     (4)  The Legislature finds that providers of emergency
51medical services and care in this state have reported
52significant problems with respect to the affordability of
53professional liability insurance, which is more expensive in
54this state than the national average. The Legislature further
55finds that a significant number of specialist physicians have
56resigned from serving on hospital staffs or have otherwise
57declined to provide on-call coverage to hospital emergency
58departments due to the increased exposure to medical malpractice
59liability created by treating such emergency department
60patients, thereby creating a void that has an adverse effect on
61emergency patient care.
62     (5)  It is the intent of the Legislature that hospitals,
63emergency medical services providers, and physicians be able to
64ensure that patients who may need emergency medical treatment
65and who present themselves to hospitals for emergency medical
66services and care have access to such needed services.
67     Section 2.  Subsection (9) of section 768.28, Florida
68Statutes, is amended to read:
69     768.28  Waiver of sovereign immunity in tort actions;
70recovery limits; limitation on attorney fees; statute of
71limitations; exclusions; indemnification; risk management
73     (9)(a)  No officer, employee, or agent of the state or of
74any of its subdivisions shall be held personally liable in tort
75or named as a party defendant in any action for any injury or
76damage suffered as a result of any act, event, or omission of
77action in the scope of her or his employment or function, unless
78such officer, employee, or agent acted in bad faith or with
79malicious purpose or in a manner exhibiting wanton and willful
80disregard of human rights, safety, or property. However, such
81officer, employee, or agent shall be considered an adverse
82witness in a tort action for any injury or damage suffered as a
83result of any act, event, or omission of action in the scope of
84her or his employment or function. The exclusive remedy for
85injury or damage suffered as a result of an act, event, or
86omission of an officer, employee, or agent of the state or any
87of its subdivisions or constitutional officers shall be by
88action against the governmental entity, or the head of such
89entity in her or his official capacity, or the constitutional
90officer of which the officer, employee, or agent is an employee,
91unless such act or omission was committed in bad faith or with
92malicious purpose or in a manner exhibiting wanton and willful
93disregard of human rights, safety, or property. The state or its
94subdivisions shall not be liable in tort for the acts or
95omissions of an officer, employee, or agent committed while
96acting outside the course and scope of her or his employment or
97committed in bad faith or with malicious purpose or in a manner
98exhibiting wanton and willful disregard of human rights, safety,
99or property.
100     (b)  As used in this subsection, the term:
101     1.  "Employee" includes any volunteer firefighter.
102     2.  "Officer, employee, or agent" includes, but is not
103limited to:,
104     a.  Any health care provider when providing services
105pursuant to s. 766.1115; any member of the Florida Health
106Services Corps, as defined in s. 381.0302, who provides
107uncompensated care to medically indigent persons referred by the
108Department of Health; any nonprofit independent college or
109university located and chartered in this state which owns or
110operates an accredited medical school, and its employees or
111agents, when providing patient services pursuant to paragraph
112(10)(f); and any public defender or her or his employee or
113agent, including, among others, an assistant public defender and
114an investigator.
115     b.  Any emergency health care provider acting pursuant to
116obligations imposed by s. 395.1041 or s. 401.45, except for
117persons or entities that are otherwise covered under this
119     (c)1.  Emergency health care providers are agents of the
120state and shall indemnify the state for any judgments,
121settlement costs, or other liabilities incurred, only up to the
122liability limits in subsection (5).
123     2.  Any emergency health care provider who is licensed by
124the state and who fails to indemnify the state after reasonable
125notice and written demand to do so is subject to an emergency
126suspension order of the regulating authority having jurisdiction
127over the licensee.
128     3.  The Department of Health shall issue an emergency order
129suspending the license of any licensee under its jurisdiction or
130any licensee of a regulatory board within the Department of
131Health who fails to comply within 30 days after receipt by the
132department of a notice from the Division of Risk Management of
133the Department of Financial Services that the licensee has
134failed to satisfy her or his obligation to indemnify the state
135or enter into a repayment agreement with the state for costs
136under this subsection. The terms of such agreement must provide
137assurance of repayment of the obligation which is satisfactory
138to the state. For licensees within the Division of Medical
139Quality Assurance of the Department of Health, failure to comply
140with this paragraph constitutes grounds for disciplinary action
141under each respective practice act and under s. 456.072(l)(k).
142     4.  As used in this subsection, the term:
143     a.  "Emergency health care provider" means a physician
144licensed under chapter 458 or chapter 459.
145     b.  "Emergency medical services" means all screenings,
146examinations, and evaluations by a physician, hospital, or other
147person or entity acting pursuant to obligations imposed by s.
148395.1041 or s. 401.45, and the care, treatment, surgery, or
149other medical services provided to relieve or eliminate the
150emergency medical condition, including all medical services to
151eliminate the likelihood that the emergency medical condition
152will deteriorate or recur without further medical attention
153within a reasonable period of time.
154     (d)(c)  For purposes of the waiver of sovereign immunity
155only, a member of the Florida National Guard is not acting
156within the scope of state employment when performing duty under
157the provisions of Title 10 or Title 32 of the United States Code
158or other applicable federal law; and neither the state nor any
159individual may be named in any action under this chapter arising
160from the performance of such federal duty.
161     (e)(d)  The employing agency of a law enforcement officer
162as defined in s. 943.10 is not liable for injury, death, or
163property damage effected or caused by a person fleeing from a
164law enforcement officer in a motor vehicle if:
165     1.  The pursuit is conducted in a manner that does not
166involve conduct by the officer which is so reckless or wanting
167in care as to constitute disregard of human life, human rights,
168safety, or the property of another;
169     2.  At the time the law enforcement officer initiates the
170pursuit, the officer reasonably believes that the person fleeing
171has committed a forcible felony as defined in s. 776.08; and
172     3.  The pursuit is conducted by the officer pursuant to a
173written policy governing high-speed pursuit adopted by the
174employing agency. The policy must contain specific procedures
175concerning the proper method to initiate and terminate high-
176speed pursuit. The law enforcement officer must have received
177instructional training from the employing agency on the written
178policy governing high-speed pursuit.
179     Section 3.  This act shall take effect upon becoming a law,
180and shall apply to any cause of action accruing on or after that

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