CS/HB 385

A bill to be entitled
2An act relating to health care; providing legislative
3findings and intent; amending s. 768.28, F.S.;
4providing sovereign immunity to emergency health care
5providers acting pursuant to obligations imposed by
6specified statutes; providing an exception; providing
7that emergency health care providers are agents of the
8state and requiring them to indemnify the state up to
9the specified liability limits; providing for
10sanctions against emergency health care providers who
11fail to comply with indemnification obligations;
12providing definitions; providing that an emergency
13medical provider may elect to not be an agent of the
14state; providing for revocation of such election;
15providing that elections and revocations are effective
16upon receipt by the Department of Health; providing
17applicability; providing an effective date.
19Be It Enacted by the Legislature of the State of Florida:
21     Section 1.  Legislative findings and intent.-
22     (1)  The Legislature finds and declares it to be of vital
23importance that emergency services and care be provided by
24hospitals, physicians, and emergency medical services providers
25to every person in need of such care. The Legislature finds that
26providers of emergency services and care are critical elements
27in responding to disaster and emergency situations that may
28affect local communities, the state, and the country. The
29Legislature recognizes the importance of maintaining a viable
30system of providing for the emergency medical needs of the
31state's residents and visitors. The Legislature and the Federal
32Government have required such providers of emergency medical
33services and care to provide emergency services and care to all
34persons who present themselves to hospitals seeking such care.
35     (2)  The Legislature has further mandated that emergency
36medical treatment may not be denied by emergency medical
37services providers to persons who have or are likely to have an
38emergency medical condition. Such governmental requirements have
39imposed a unilateral obligation for providers of emergency
40services and care to provide services to all persons seeking
41emergency care without ensuring payment or other consideration
42for provision of such care. The Legislature also recognizes that
43providers of emergency services and care provide a significant
44amount of uncompensated emergency medical care in furtherance of
45such governmental interest.
46     (3)  The Legislature finds that a significant proportion of
47the residents of this state who are uninsured or are Medicaid or
48Medicare recipients are unable to access needed health care on
49an elective basis because health care providers fear the
50increased risk of medical malpractice liability. The Legislature
51finds that such patients, in order to obtain medical care, are
52frequently forced to seek care through providers of emergency
53medical services and care.
54     (4)  The Legislature finds that providers of emergency
55medical services and care in this state have reported
56significant problems with respect to the affordability of
57professional liability insurance, which is more expensive in
58this state than the national average. The Legislature further
59finds that a significant number of specialist physicians have
60resigned from serving on hospital staffs or have otherwise
61declined to provide on-call coverage to hospital emergency
62departments due to the increased exposure to medical malpractice
63liability created by treating such emergency department
64patients, thereby creating a void that has an adverse effect on
65emergency patient care.
66     (5)  It is the intent of the Legislature that hospitals,
67emergency medical services providers, and physicians be able to
68ensure that patients who may need emergency medical treatment
69and who present themselves to hospitals for emergency medical
70services and care have access to such needed services.
71     Section 2.  Subsection (9) of section 768.28, Florida
72Statutes, is amended to read:
73     768.28  Waiver of sovereign immunity in tort actions;
74recovery limits; limitation on attorney fees; statute of
75limitations; exclusions; indemnification; risk management
77     (9)(a)  No officer, employee, or agent of the state or of
78any of its subdivisions shall be held personally liable in tort
79or named as a party defendant in any action for any injury or
80damage suffered as a result of any act, event, or omission of
81action in the scope of her or his employment or function, unless
82such officer, employee, or agent acted in bad faith or with
83malicious purpose or in a manner exhibiting wanton and willful
84disregard of human rights, safety, or property. However, such
85officer, employee, or agent shall be considered an adverse
86witness in a tort action for any injury or damage suffered as a
87result of any act, event, or omission of action in the scope of
88her or his employment or function. The exclusive remedy for
89injury or damage suffered as a result of an act, event, or
90omission of an officer, employee, or agent of the state or any
91of its subdivisions or constitutional officers shall be by
92action against the governmental entity, or the head of such
93entity in her or his official capacity, or the constitutional
94officer of which the officer, employee, or agent is an employee,
95unless such act or omission was committed in bad faith or with
96malicious purpose or in a manner exhibiting wanton and willful
97disregard of human rights, safety, or property. The state or its
98subdivisions shall not be liable in tort for the acts or
99omissions of an officer, employee, or agent committed while
100acting outside the course and scope of her or his employment or
101committed in bad faith or with malicious purpose or in a manner
102exhibiting wanton and willful disregard of human rights, safety,
103or property.
104     (b)  As used in this subsection, the term:
105     1.  "Employee" includes any volunteer firefighter.
106     2.  "Officer, employee, or agent" includes, but is not
107limited to:,
108     a.  Any health care provider when providing services
109pursuant to s. 766.1115; any member of the Florida Health
110Services Corps, as defined in s. 381.0302, who provides
111uncompensated care to medically indigent persons referred by the
112Department of Health; any nonprofit independent college or
113university located and chartered in this state which owns or
114operates an accredited medical school, and its employees or
115agents, when providing patient services pursuant to paragraph
116(10)(f); and any public defender or her or his employee or
117agent, including, among others, an assistant public defender and
118an investigator.
119     b.  Any emergency health care provider acting pursuant to
120obligations imposed by s. 395.1041 or s. 401.45, except for
121persons or entities that are otherwise covered under this
123     (c)1.  Emergency health care providers are agents of the
124state and shall indemnify the state for any judgments,
125settlement costs, or other liabilities incurred, only up to the
126liability limits in subsection (5).
127     2.  Any emergency health care provider who is licensed by
128the state and who fails to indemnify the state after reasonable
129notice and written demand to do so is subject to an emergency
130suspension order of the regulating authority having jurisdiction
131over the licensee.
132     3.  The Department of Health shall issue an emergency order
133suspending the license of any licensee under its jurisdiction or
134any licensee of a regulatory board within the Department of
135Health who fails to comply within 30 days after receipt by the
136department of a notice from the Division of Risk Management of
137the Department of Financial Services that the licensee has
138failed to satisfy her or his obligation to indemnify the state
139or enter into a repayment agreement with the state for costs
140under this subsection. The terms of such agreement must provide
141assurance of repayment of the obligation which is satisfactory
142to the state. For licensees within the Division of Medical
143Quality Assurance of the Department of Health, failure to comply
144with this paragraph constitutes grounds for disciplinary action
145under each respective practice act and under s. 456.072(l)(k).
146     4.  As used in this subsection, the term:
147     a.  "Emergency health care provider" means a physician
148licensed under chapter 458 or chapter 459.
149     b.  "Emergency medical services" means all screenings,
150examinations, and evaluations by a physician, hospital, or other
151person or entity acting pursuant to obligations imposed by s.
152395.1041 or s. 401.45, and the care, treatment, surgery, or
153other medical services provided to relieve or eliminate the
154emergency medical condition, including all medical services to
155eliminate the likelihood that the emergency medical condition
156will deteriorate or recur without further medical attention
157within a reasonable period of time.
158     5.  An emergency health care provider may affirmatively
159elect in writing not to be considered an agent of the state by
160submitting a form to that effect to the Department of Health. An
161emergency health care provider who makes such election may
162revoke the election by submitting a form revoking the election.
163An election or revocation is effective upon filing with the
164department. Any emergency health care provider who declines the
165status conferred by sub-subparagraph b. shall not be considered
166an agent of the state.
167     (d)(c)  For purposes of the waiver of sovereign immunity
168only, a member of the Florida National Guard is not acting
169within the scope of state employment when performing duty under
170the provisions of Title 10 or Title 32 of the United States Code
171or other applicable federal law; and neither the state nor any
172individual may be named in any action under this chapter arising
173from the performance of such federal duty.
174     (e)(d)  The employing agency of a law enforcement officer
175as defined in s. 943.10 is not liable for injury, death, or
176property damage effected or caused by a person fleeing from a
177law enforcement officer in a motor vehicle if:
178     1.  The pursuit is conducted in a manner that does not
179involve conduct by the officer which is so reckless or wanting
180in care as to constitute disregard of human life, human rights,
181safety, or the property of another;
182     2.  At the time the law enforcement officer initiates the
183pursuit, the officer reasonably believes that the person fleeing
184has committed a forcible felony as defined in s. 776.08; and
185     3.  The pursuit is conducted by the officer pursuant to a
186written policy governing high-speed pursuit adopted by the
187employing agency. The policy must contain specific procedures
188concerning the proper method to initiate and terminate high-
189speed pursuit. The law enforcement officer must have received
190instructional training from the employing agency on the written
191policy governing high-speed pursuit.
192     Section 3.  This act shall take effect upon becoming a law,
193and shall apply to any cause of action accruing on or after that

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