Bill Text: FL H0385 | 2012 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Medical Malpractice

Spectrum: Slight Partisan Bill (Republican 5-3)

Status: (Failed) 2012-03-09 - Died in Health and Human Services Committee [H0385 Detail]

Download: Florida-2012-H0385-Introduced.html

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HB 385

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

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