Florida Senate - 2013                                    SB 1402
       
       
       
       By Senator Stargel
       
       
       
       
       15-00292D-13                                          20131402__
    1                        A bill to be entitled                      
    2         An act relating to damages for medical or health care
    3         services; creating s. 768.755, F.S.; limiting recovery
    4         of damages for medical or health care services to
    5         amounts actually paid if no balance to the provider is
    6         outstanding; limiting recovery of such damages to
    7         amounts customarily accepted by providers in the same
    8         geographic area if a balance to the provider is
    9         outstanding; requiring medical or health care services
   10         to be medically necessary in order to be recoverable;
   11         providing that a patient is not liable for payment of
   12         a procedure that is medically unnecessary and
   13         nonpayment may be asserted as an affirmative defense
   14         in any action to recover damages; specifying that
   15         certain evidence shall be considered in determining
   16         the amounts customarily accepted; providing for
   17         reduction of awards under specified provisions;
   18         providing for applicability; providing an effective
   19         date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Section 768.755, Florida Statutes, is created to
   24  read:
   25         768.755 Damages recoverable for medical or health care
   26  services.—In any action to which this part applies, damages for
   27  medical or health care services provided or to be provided to a
   28  claimant are recoverable only as provided in this section.
   29         (1) With respect to any medical or health care services
   30  provided to the claimant for which an outstanding balance is not
   31  due to the provider, the actual amounts remitted to the provider
   32  are the only amounts recoverable. In such circumstances, any
   33  difference between the amounts originally billed by the provider
   34  and the actual amounts remitted to the provider are not
   35  recoverable or admissible into evidence.
   36         (2) With respect to any medical or health care services
   37  provided to the claimant for which an outstanding balance is
   38  claimed to be due to the provider, and to claims asserted for
   39  medical or health care services to be provided to the claimant
   40  in the future, the maximum amounts recoverable are the amounts
   41  customarily accepted in payment for such services by providers
   42  in the same geographic area, excluding government entitlement
   43  programs that are not arms’ length transactions such as Medicaid
   44  and Medicare. This limitation also applies to any lien or claim
   45  of subrogation asserted for such services in the action, except
   46  for a lien or claim of subrogation described in subsection (4).
   47         (3) Damages for medical or health care services provided or
   48  to be provided to a claimant are recoverable only for those
   49  services determined, by a preponderance of the evidence, to be
   50  medically necessary. If it is determined that any of the
   51  claimant’s medical or health care services provided were not
   52  medically necessary, the claimant may not recover damages for
   53  such services or recover from the nonprovider defendant for any
   54  damages arising out of or related to such services. A patient is
   55  not liable to a provider for past medical or health care
   56  services rendered if such services were not medically necessary,
   57  and nonpayment based on lack of medical necessity may be
   58  asserted as an affirmative defense in any action to recover such
   59  damages.
   60         (4) Notwithstanding any other provision in this section to
   61  the contrary, if Medicaid, Medicare, or a payor regulated under
   62  the Florida Insurance Code has covered or is an insurer covering
   63  the claimant’s medical or health care services and has given
   64  notice of assertion of a lien or a claim of subrogation for past
   65  medical expenses in the action, the amount of the lien or claim
   66  of subrogation, plus the amount of any copayments or deductibles
   67  paid or payable by the claimant, shall be the maximum amount
   68  recoverable and admissible into evidence with respect to the
   69  covered services.
   70         (5) After damages in compliance with this section are
   71  awarded to a claimant, the court shall apply s. 768.76 and
   72  reduce the amount of such award, as appropriate.
   73         (6) This section applies only to actions for personal
   74  injury or wrongful death of the claimant and has no other
   75  application or effect regarding compensation paid to providers
   76  for medical or health care services.
   77         Section 2. This act shall take effect upon becoming a law
   78  and shall apply to all causes of action arising on or after that
   79  date.