Florida Senate - 2017 SB 262
By Senator Steube
1 A bill to be entitled
2 An act relating to health insurance; amending s.
3 641.19, F.S.; revising definitions; amending s.
4 641.51, F.S.; deleting a provision that provides that
5 health maintenance organizations are not vicariously
6 liable for certain medical negligence except under
7 certain circumstances; amending s. 641.3917, F.S.;
8 authorizing specified persons to bring a civil action
9 against a health maintenance organization for certain
10 violations; providing for construction; specifying a
11 health maintenance organization’s liability for such
12 violations; repealing s. 768.0981, F.S., relating to a
13 limitation on actions against insurers, prepaid
14 limited health service organizations, health
15 maintenance organizations, or prepaid health clinics;
16 providing applicability; providing an effective date.
18 Be It Enacted by the Legislature of the State of Florida:
20 Section 1. Subsections (11), (12), and (18) of section
21 641.19, Florida Statutes, are amended to read:
22 641.19 Definitions.—As used in this part, the term:
23 (11) “Health maintenance contract” means any contract
24 entered into by a health maintenance organization with a
25 subscriber or group of subscribers to provide
26 comprehensive health care services in exchange for a prepaid per
27 capita or prepaid aggregate fixed sum.
28 (12) “Health maintenance organization” means any
29 organization authorized under this part which:
30 (a) Provides , through arrangements with other persons,
31 emergency care; , inpatient hospital services; , physician care,
32 including care provided by physicians licensed under chapters
33 458, 459, 460, and 461; , ambulatory diagnostic treatment; , and
34 preventive health care services.
35 (b) Provides, either directly or through arrangements with
36 other persons, health care services to persons enrolled with
37 such organization, on a prepaid per capita or prepaid aggregate
38 fixed-sum basis.
39 (c) Provides, either directly or through arrangements with
40 other persons, comprehensive health care services which
41 subscribers are entitled to receive pursuant to a contract.
42 (d) Provides physician services, by physicians licensed
43 under chapters 458, 459, 460, and 461, directly through
44 physicians who are either employees or partners of such
45 organization or under arrangements with a physician or any group
46 of physicians.
47 (e) If offering services through a managed care system, has
48 a system in which a primary physician licensed under chapter
49 458, chapter 459, chapter 460, or chapter 461 is designated for
50 each subscriber upon request of a subscriber requesting service
51 by a physician licensed under any of those chapters, and is
52 responsible for coordinating the health care of the subscriber
53 of the respectively requested service and for referring the
54 subscriber to other providers of the same discipline when
55 necessary. Each female subscriber may select as her primary
56 physician an obstetrician/gynecologist who has agreed to serve
57 as a primary physician and is in the health maintenance
58 organization’s provider network.
60 Except in cases in which the health care provider is an employee
61 of the health maintenance organization, the fact that the health
62 maintenance organization arranges for the provision of health
63 care services under this chapter does not create an actual
64 agency, apparent agency, or employer-employee relationship
65 between the health care provider and the health maintenance
66 organization for purposes of vicarious liability for the medical
67 negligence of the health care provider.
68 (18) “Subscriber” means an entity or individual who has
69 contracted, or on whose behalf a contract has been entered into,
70 with a health maintenance organization for health care services
71 coverage or other persons who also receive health care services
72 coverage as a result of the contract.
73 Section 2. Subsection (3) of section 641.51, Florida
74 Statutes, is amended to read:
75 641.51 Quality assurance program; second medical opinion
77 (3) The health maintenance organization shall not have the
78 right to control the professional judgment of a physician
79 licensed under chapter 458, chapter 459, chapter 460, or chapter
80 461 concerning the proper course of treatment of a subscriber.
81 However, this subsection shall not be considered to restrict a
82 utilization management program established by an organization or
83 to affect an organization’s decision as to payment for covered
84 services. Except in cases in which the health care provider is
85 an employee of the health maintenance organization, the health
86 maintenance organization shall not be vicariously liable for the
87 medical negligence of the health care provider, whether such
88 claim is alleged under a theory of actual agency, apparent
89 agency, or employer-employee relationship.
90 Section 3. Section 641.3917, Florida Statutes, is amended
91 to read:
92 641.3917 Civil liability.—
93 (1) The provisions of this part are cumulative to rights
94 under the general civil and common law, and no action of the
95 department or office shall abrogate such rights to damage or
96 other relief in any court.
97 (2) Any person to whom a duty is owed may bring a civil
98 action against a health maintenance organization when such
99 person suffers damages as a result of the health maintenance
101 (a) Violation of s. 641.3155, s. 641.3903(5), (10), (12),
102 (13), or (14), or s. 641.51; or
103 (b) Failure to provide a covered service, when the health
104 maintenance organization in good faith should have provided such
105 service had it acted fairly and reasonably toward the subscriber
106 or enrollee and with due regard for his or her interests, and
107 such service is medically reasonable or necessary in the
108 independent medical judgment of a treating physician under
109 contract with, or another physician authorized by, the health
110 maintenance organization.
112 A person bringing an action under this subsection need not prove
113 that such act was committed or performed with such frequency as
114 to indicate a general business practice.
115 (3) The health maintenance organization is liable for all
116 of the claimant’s damages or $500 per violation, whichever is
117 greater. The court may also award compensatory damages,
118 including, but not limited to, damages for mental anguish, loss
119 of dignity, and any other intangible injuries, and punitive
120 damages. In an action or proceeding brought under this
121 subsection, the court shall award a prevailing plaintiff
122 reasonable attorney fees as part of the costs.
123 Section 4. Section 768.0981, Florida Statutes, is repealed.
124 Section 5. The amendments to ss. 641.19, 641.51, and
125 641.3917, Florida Statutes, made by this act and the repeal of
126 s. 768.0981, Florida Statutes, by this act apply to causes of
127 action accruing on or after the effective date of this act.
128 Section 6. This act shall take effect October 1, 2017.