Florida Senate - 2021                                    SB 1678
       
       
        
       By Senator Diaz
       
       
       
       
       
       36-00278B-21                                          20211678__
    1                        A bill to be entitled                      
    2         An act relating to sovereign immunity; amending s.
    3         768.28, F.S.; increasing the statutory limits on
    4         liability for tort claims against the state and its
    5         agencies and subdivisions; specifying that the
    6         limitations in effect on the date a final judgment is
    7         entered apply to that claim; requiring that the
    8         limitations on tort liability be adjusted every year
    9         after a specified date; revising sovereign immunity
   10         applicability relating to certain hospitals and
   11         employees and agents of such hospitals; conforming
   12         provisions to changes made by the act; amending s.
   13         766.111, F.S.; conforming provisions to changes made
   14         by the act; providing an effective date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Subsection (5), paragraph (b) of subsection (9),
   19  and paragraph (f) of subsection (10) of section 768.28, Florida
   20  Statutes, are amended, and subsection (21) is added to that
   21  section, to read:
   22         768.28 Waiver of sovereign immunity in tort actions;
   23  recovery limits; limitation on attorney fees; statute of
   24  limitations; exclusions; indemnification; risk management
   25  programs.—
   26         (5)(a) The state and its agencies and subdivisions shall be
   27  liable for tort claims in the same manner and to the same extent
   28  as a private individual under like circumstances, but liability
   29  shall not include punitive damages or interest for the period
   30  before judgment. Neither the state nor its agencies or
   31  subdivisions shall be liable to pay a claim or a judgment by any
   32  one person which exceeds the sum of $500,000 $200,000 or any
   33  claim or judgment, or portions thereof, which, when totaled with
   34  all other claims or judgments paid by the state or its agencies
   35  or subdivisions arising out of the same incident or occurrence,
   36  exceeds the sum of $1 million $300,000. However, a judgment or
   37  judgments may be claimed and rendered in excess of these amounts
   38  and may be settled and paid pursuant to this act up to $500,000
   39  $200,000 or $1 million $300,000, as the case may be; and that
   40  portion of the judgment that exceeds these amounts may be
   41  reported to the Legislature, but may be paid in part or in whole
   42  only by further act of the Legislature.
   43         (b) Notwithstanding the limited waiver of sovereign
   44  immunity provided herein, the state or an agency or subdivision
   45  thereof may agree, within the limits of insurance coverage
   46  provided, to settle a claim made or a judgment rendered against
   47  it without further action by the Legislature, but the state or
   48  agency or subdivision thereof shall not be deemed to have waived
   49  any defense of sovereign immunity or to have increased the
   50  limits of its liability as a result of its obtaining insurance
   51  coverage for tortious acts in excess of the $500,000 $200,000 or
   52  $1 million $300,000 waiver provided above.
   53         (c) The limitations of liability set forth in this
   54  subsection shall apply to the state and its agencies and
   55  subdivisions whether or not the state or its agencies or
   56  subdivisions possessed sovereign immunity before July 1, 1974.
   57         (d)When determining liability limits for a claim, the
   58  limitations of liability in effect on the date a final judgment
   59  is entered shall apply to the claim.
   60         (e)Beginning July 1, 2022, and every July 1 thereafter,
   61  the limitations of liability in this subsection must be adjusted
   62  to reflect changes in the Consumer Price Index for the Southeast
   63  or a successor index as calculated by the United States
   64  Department of Labor.
   65         (9)
   66         (b) As used in this subsection, the term:
   67         1. “Employee” includes any volunteer firefighter.
   68         2. “Officer, employee, or agent” includes, but is not
   69  limited to, any health care provider when providing services
   70  pursuant to s. 766.1115; any nonprofit independent college or
   71  university located and chartered in this state which owns or
   72  operates an accredited medical school, and its employees or
   73  agents, when providing patient services pursuant to paragraph
   74  (10)(f); and any public defender or her or his employee or
   75  agent, including, among others, an assistant public defender and
   76  an investigator.
   77         (10)
   78         (f) For purposes of this section, any nonprofit independent
   79  college or university located and chartered in this state which
   80  owns or operates an accredited medical school, or any of its
   81  employees or agents, and which has agreed in an affiliation
   82  agreement or other contract to provide, or permit its employees
   83  or agents to provide, patient services as agents of a teaching
   84  hospital, is considered an agent of the teaching hospital while
   85  acting within the scope of and pursuant to guidelines
   86  established in the affiliation agreement or other contract. To
   87  the extent allowed by law, the contract must provide for the
   88  indemnification of the teaching hospital, up to the limits set
   89  out in this chapter, by the agent for any liability incurred
   90  which was caused by the negligence of the college or university
   91  or its employees or agents. The contract must also provide that
   92  those limited portions of the college, university, or medical
   93  school which are directly providing services pursuant to the
   94  contract and which are considered an agent of the teaching
   95  hospital for purposes of this section are deemed to be acting on
   96  behalf of a public agency as defined in s. 119.011(2).
   97         1. For purposes of this paragraph, the term:
   98         a. “Employee or agent” means an officer, employee, agent,
   99  or servant of a nonprofit independent college or university
  100  located and chartered in this state which owns or operates an
  101  accredited medical school, including, but not limited to, the
  102  faculty of the medical school, any health care practitioner or
  103  licensee as defined in s. 456.001 for which the college or
  104  university is vicariously liable, and the staff or
  105  administrators of the medical school.
  106         b. “Patient services” mean:
  107         (I) Comprehensive health care services as defined in s.
  108  641.19, including any related administrative service, provided
  109  to patients in a teaching hospital;
  110         (II) Training and supervision of interns, residents, and
  111  fellows providing patient services in a teaching hospital; or
  112         (III) Training and supervision of medical students in a
  113  teaching hospital.
  114         c. “Teaching hospital” means a teaching hospital as defined
  115  in s. 408.07 which is owned or operated by the state, a county
  116  or municipality, a public health trust, a special taxing
  117  district, a governmental entity having health care
  118  responsibilities, or a not-for-profit entity that operates such
  119  facility as an agent of the state, or a political subdivision of
  120  the state, under a lease or other contract.
  121         2. The teaching hospital or the medical school, or its
  122  employees or agents, must provide notice to each patient, or the
  123  patient’s legal representative, that the college or university
  124  that owns or operates the medical school and the employees or
  125  agents of that college or university are acting as agents of the
  126  teaching hospital and that the exclusive remedy for injury or
  127  damage suffered as the result of any act or omission of the
  128  teaching hospital, the college or university that owns or
  129  operates the medical school, or the employees or agents of the
  130  college or university, while acting within the scope of duties
  131  pursuant to the affiliation agreement or other contract with a
  132  teaching hospital, is by commencement of an action pursuant to
  133  the provisions of this section. This notice requirement may be
  134  met by posting the notice in a place conspicuous to all persons.
  135         3. This paragraph does not designate any employee providing
  136  contracted patient services in a teaching hospital as an
  137  employee or agent of the state for purposes of chapter 440.
  138         (21)Unless otherwise provided in this section, the
  139  limitations in this section do not apply to a hospital licensed
  140  under chapter 395, which is owned or operated by the state, a
  141  county or municipality, a public health trust, a special taxing
  142  district, a governmental entity having health care
  143  responsibilities, or a not-for-profit entity that operates such
  144  facility under a lease or other contract as an agent of the
  145  state or a political subdivision of the state.
  146         Section 2. Paragraph (b) of subsection (12) of section
  147  766.1115, Florida Statutes, is amended to read:
  148         766.1115 Health care providers; creation of agency
  149  relationship with governmental contractors.—
  150         (12) APPLICABILITY.—This section applies to incidents
  151  occurring on or after April 17, 1992. This section does not:
  152         (b) Apply to any affiliation agreement or other contract
  153  that is subject to s. 768.28(10)(f).
  154         Section 3. This act shall take effect July 1, 2021.