CS/HB 385

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

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