Bill Text: FL H0479 | 2011 | Regular Session | Introduced

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

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Bill Title: Medical Malpractice

Spectrum: Moderate Partisan Bill (Republican 19-4-2)

Status: (Engrossed - Dead) 2011-05-04 - Concurred in 5 amendment(s) (462134, 512636, 593896, 855110, 911838) -HJ 1149, 1150 [H0479 Detail]

Download: Florida-2011-H0479-Introduced.html

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HB 479

1	A bill to be entitled
2	An act relating to medical malpractice; creating ss.
3	458.3175 and 459.0066, F.S.; requiring the Board of
4	Medicine and the Board of Osteopathic Medicine to issue
5	expert witness certificates to certain physicians licensed
6	outside of the state; providing application and
7	certification requirements; establishing application fees;
8	providing for validity and use of certifications;
9	exempting physicians issued certifications from certain
10	licensure and fee requirements; requiring the boards to
11	adopt rules; amending ss. 458.331 and 459.015, F.S.;
12	providing additional acts that constitute grounds for
13	denial of a license or disciplinary action to which
14	penalties apply; providing construction with respect to
15	the doctrine of incorporation by reference; amending ss.
16	458.351 and 459.026, F.S.; requiring the boards to adopt
17	within a specified period certain patient forms specifying
18	cataract surgery risks; exempting rules adopting the
19	patient forms from certain administrative procedures;
20	specifying that an incident resulting from risks disclosed
21	in the patient form is not an adverse incident; providing
22	for the execution and admissibility of the patient forms
23	in civil and administrative proceedings; creating a
24	rebuttable presumption that a physician disclosed cataract
25	surgery risks if the patient form is executed; amending s.
26	627.4147, F.S.; deleting a requirement that medical
27	malpractice insurance contracts contain a clause
28	authorizing the insurer to make and conclude certain
29	offers within policy limits over the insured's veto;
30	amending s. 766.102, F.S.; defining terms; providing that
31	certain insurance information is not admissible as
32	evidence in civil actions; requiring that certain expert
33	witnesses who provide certain expert testimony meet
34	certain licensure or certification requirements;
35	establishing the burden of proof that a claimant must meet
36	in certain damage claims against health care providers
37	based on death or personal injury; excluding a health care
38	provider's failure to comply with or breach of federal
39	requirements from evidence in medical negligence cases in
40	the state; amending s. 766.106, F.S.; requiring claimants
41	for medical malpractice to execute an authorization form;
42	allowing prospective medical malpractice defendants to
43	interview a claimant's treating health care provider
44	without notice to or the presence of the claimant or the
45	claimant's legal representative; authorizing prospective
46	defendants to take unsworn statements of a claimant's
47	health care provider; creating s. 766.1065, F.S.;
48	requiring that presuit notice for medical negligence
49	claims be accompanied by an authorization for release of
50	protected health information; providing requirements for
51	the form of such authorization; amending s. 766.206, F.S.;
52	requiring dismissal of a medical malpractice claim if such
53	authorization is not completed in good faith; amending s.
54	768.0981, F.S.; limiting the liability of hospitals
55	related to certain medical negligence claims; providing an
56	effective date.
57
58	Be It Enacted by the Legislature of the State of Florida:
59
60	Section 1.  Section 458.3175, Florida Statutes, is created
61	to read:
62	458.3175  Expert witness certificate.-
63	(1)(a)  The board shall issue a certificate authorizing a
64	physician who holds an active and valid license to practice
65	medicine in another state or a province of Canada to provide
66	expert testimony in this state, if the physician submits to the
67	board a complete registration application in the format
68	prescribed by the board, pays an application fee established by
69	the board not to exceed $50, and has not had a previous expert
70	witness certificate revoked by the board.
71	(b)  The board shall approve or deny an application for an
72	expert witness certificate within 5 business days after receipt
73	of the completed application and payment of the application fee.
74	An application is approved by default if the board does not act
75	upon the application within the required period. A physician
76	must notify the board in writing of his or her intent to rely on
77	a certificate approved by default.
78	(c)  An expert witness certificate is valid for 2 years
79	after the date of issuance.
80	(2)  An expert witness certificate authorizes the physician
81	to whom the certificate is issued to do only the following:
82	(a)  Provide a verified written medical expert opinion as
83	provided in s. 766.203.
84	(b)  Provide expert testimony about the prevailing
85	professional standard of care in connection with medical
86	negligence litigation pending in this state against a physician
87	licensed under this chapter or chapter 459.
88	(3)  An expert witness certificate does not authorize a
89	physician to engage in the practice of medicine as defined in s.
90	458.305. A physician issued a certificate under this section who
91	does not otherwise practice medicine in this state is not
92	required to obtain a license under this chapter or pay any
93	license fees, including, but not limited to, a neurological
94	injury compensation assessment.
95	(4)  The board shall adopt rules to administer this
96	section.
97	Section 2.  Subsection (11) is added to section 458.331,
98	Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
99	of that section are redesignated as paragraphs (pp) through
100	(rr), respectively, and a new paragraph (oo) is added to that
101	subsection, to read:
102	458.331  Grounds for disciplinary action; action by the
103	board and department.-
104	(1)  The following acts constitute grounds for denial of a
105	license or disciplinary action, as specified in s. 456.072(2):
106	(oo)  Providing misleading, deceptive, or fraudulent expert
107	witness testimony related to the practice of medicine.
108	(11)  The purpose of this section is to facilitate uniform
109	discipline for those acts made punishable under this section
110	and, to this end, a reference to this section constitutes a
111	general reference under the doctrine of incorporation by
112	reference.
113	Section 3.  Subsection (6) of section 458.351, Florida
114	Statutes, is renumbered as subsection (7), and a new subsection
115	(6) is added to that section, to read:
116	458.351  Reports of adverse incidents in office practice
117	settings.-
118	(6)(a)  The board shall adopt rules establishing a standard
119	informed consent form that sets forth the recognized specific
120	risks related to cataract surgery. The board must propose such
121	rules within 90 days after the effective date of this
122	subsection, and the provisions of s. 120.541 relating to adverse
123	impacts, estimated regulatory costs, and legislative
124	ratification of rules do not apply to such rules.
125	(b)  Before formally proposing the rule, the board must
126	consider information from physicians licensed under this chapter
127	or chapter 459 regarding recognized specific risks related to
128	cataract surgery and the standard informed consent forms adopted
129	for use in the medical field by other states.
130	(c)  A patient's informed consent is not executed until the
131	patient, or a person authorized by the patient to give consent,
132	and a competent witness sign the form adopted by the board.
133	(d)  An incident resulting from recognized specific risks
134	described in the signed consent form is not considered an
135	adverse incident for purposes of s. 395.0197 and this section.
136	(e)  In a civil action or administrative proceeding against
137	a physician based on his or her alleged failure to properly
138	disclose the risks of cataract surgery, a patient's informed
139	consent executed as provided in paragraph (c) on the form
140	adopted by the board is admissible as evidence and creates a
141	rebuttable presumption that the physician properly disclosed the
142	risks. This rebuttable presumption shall be included in the
143	charge to the jury in a civil action.
144	Section 4.  Section 459.0066, Florida Statutes, is created
145	to read:
146	459.0066  Expert witness certificate.-
147	(1)(a)  The board shall issue a certificate authorizing a
148	physician who holds an active and valid license to practice
149	osteopathic medicine in another state or a province of Canada to
150	provide expert testimony in this state, if the physician submits
151	to the board a complete registration application in the format
152	prescribed by the board, pays an application fee established by
153	the board not to exceed $50, and has not had a previous expert
154	witness certificate revoked by the board.
155	(b)  The board shall approve or deny an application for an
156	expert witness certificate within 5 business days after receipt
157	of the completed application and payment of the application fee.
158	An application is approved by default if the board does not act
159	upon the application within the required period. A physician
160	must notify the board in writing of his or her intent to rely on
161	a certificate approved by default.
162	(c)  An expert witness certificate is valid for 2 years
163	after the date of issuance.
164	(2)  An expert witness certificate authorizes the physician
165	to whom the certificate is issued to do only the following:
166	(a)  Provide a verified written medical expert opinion as
167	provided in s. 766.203.
168	(b)  Provide expert testimony about the prevailing
169	professional standard of care in connection with medical
170	negligence litigation pending in this state against a physician
171	licensed under chapter 458 or this chapter.
172	(3)  An expert witness certificate does not authorize a
173	physician to engage in the practice of osteopathic medicine as
174	defined in s. 459.003. A physician issued a certificate under
175	this section who does not otherwise practice osteopathic
176	medicine in this state is not required to obtain a license under
177	this chapter or pay any license fees, including, but not limited
178	to, a neurological injury compensation assessment.
179	(4)  The board shall adopt rules to administer this
180	section.
181	Section 5.  Subsection (11) is added to section 459.015,
182	Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
183	of that section are redesignated as paragraphs (rr) through
184	(tt), respectively, and a new paragraph (qq) is added to that
185	subsection, to read:
186	459.015  Grounds for disciplinary action; action by the
187	board and department.-
188	(1)  The following acts constitute grounds for denial of a
189	license or disciplinary action, as specified in s. 456.072(2):
190	(qq)  Providing misleading, deceptive, or fraudulent expert
191	witness testimony related to the practice of osteopathic
192	medicine.
193	(11)  The purpose of this section is to facilitate uniform
194	discipline for those acts made punishable under this section
195	and, to this end, a reference to this section constitutes a
196	general reference under the doctrine of incorporation by
197	reference.
198	Section 6.  Subsection (6) of section 459.026, Florida
199	Statutes, is renumbered as subsection (7), and a new subsection
200	(6) is added to that section, to read:
201	459.026  Reports of adverse incidents in office practice
202	settings.-
203	(6)(a)  The board shall adopt rules establishing a standard
204	informed consent form that sets forth the recognized specific
205	risks related to cataract surgery. The board must propose such
206	rules within 90 days after the effective date of this
207	subsection, and the provisions of s. 120.541 relating to adverse
208	impacts, estimated regulatory costs, and legislative
209	ratification of rules do not apply to such rules.
210	(b)  Before formally proposing the rule, the board must
211	consider information from physicians licensed under chapter 458
212	or this chapter regarding recognized specific risks related to
213	cataract surgery and the standard informed consent forms adopted
214	for use in the medical field by other states.
215	(c)  A patient's informed consent is not executed until the
216	patient, or a person authorized by the patient to give consent,
217	and a competent witness sign the form adopted by the board.
218	(d)  An incident resulting from recognized specific risks
219	described in the signed consent form is not considered an
220	adverse incident for purposes of s. 395.0197 and this section.
221	(e)  In a civil action or administrative proceeding against
222	a physician based on his or her alleged failure to properly
223	disclose the risks of cataract surgery, a patient's informed
224	consent executed as provided in paragraph (c) on the form
225	adopted by the board is admissible as evidence and creates a
226	rebuttable presumption that the physician properly disclosed the
227	risks. This rebuttable presumption shall be included in the
228	charge to the jury in a civil action.
229	Section 7.  Paragraph (b) of subsection (1) of section
230	627.4147, Florida Statutes, is amended to read:
231	627.4147  Medical malpractice insurance contracts.-
232	(1)  In addition to any other requirements imposed by law,
233	each self-insurance policy as authorized under s. 627.357 or s.
234	624.462 or insurance policy providing coverage for claims
235	arising out of the rendering of, or the failure to render,
236	medical care or services, including those of the Florida Medical
237	Malpractice Joint Underwriting Association, shall include:
238	(b)1.  Except as provided in subparagraph 2., a clause
239	authorizing the insurer or self-insurer to determine, to make,
240	and to conclude, without the permission of the insured, any
241	offer of admission of liability and for arbitration pursuant to
242	s. 766.106, settlement offer, or offer of judgment, if the offer
243	is within the policy limits. It is against public policy for any
244	insurance or self-insurance policy to contain a clause giving
245	the insured the exclusive right to veto any offer for admission
246	of liability and for arbitration made pursuant to s. 766.106,
247	settlement offer, or offer of judgment, when such offer is
248	within the policy limits. However, any offer of admission of
249	liability, settlement offer, or offer of judgment made by an
250	insurer or self-insurer shall be made in good faith and in the
251	best interests of the insured.
252	2.a.  With respect to dentists licensed under chapter 466,
253	A clause clearly stating whether or not the insured has the
254	exclusive right to veto any offer of admission of liability and
255	for arbitration pursuant to s. 766.106, settlement offer, or
256	offer of judgment if the offer is within policy limits. An
257	insurer or self-insurer shall not make or conclude, without the
258	permission of the insured, any offer of admission of liability
259	and for arbitration pursuant to s. 766.106, settlement offer, or
260	offer of judgment, if such offer is outside the policy limits.
261	However, any offer for admission of liability and for
262	arbitration made under s. 766.106, settlement offer, or offer of
263	judgment made by an insurer or self-insurer shall be made in
264	good faith and in the best interest of the insured.
265	2.b.  If the policy contains a clause stating the insured
266	does not have the exclusive right to veto any offer or admission
267	of liability and for arbitration made pursuant to s. 766.106,
268	settlement offer or offer of judgment, the insurer or self-
269	insurer shall provide to the insured or the insured's legal
270	representative by certified mail, return receipt requested, a
271	copy of the final offer of admission of liability and for
272	arbitration made pursuant to s. 766.106, settlement offer or
273	offer of judgment and at the same time such offer is provided to
274	the claimant. A copy of any final agreement reached between the
275	insurer and claimant shall also be provided to the insurer or
276	his or her legal representative by certified mail, return
277	receipt requested not more than 10 days after affecting such
278	agreement.
279	Section 8.  Subsections (3), (4), and (5) of section
280	766.102, Florida Statutes, are amended, subsection (12) of that
281	section is renumbered as subsection (14), and new subsections
282	(12) and (13) are added to that section, to read:
283	766.102  Medical negligence; standards of recovery; expert
284	witness.-
285	(3)(a)  As used in this subsection, the term:
286	1.  "Insurer" means any public or private insurer,
287	including the Centers for Medicare and Medicaid Services.
288	2.  "Reimbursement determination" means an insurer's
289	determination of the amount that the insurer will reimburse a
290	health care provider for health care services.
291	3.  "Reimbursement policies" means an insurer's policies
292	and procedures governing its decisions regarding health
293	insurance coverage and method of payment and the data upon which
294	such policies and procedures are based, including, but not
295	limited to, data from national research groups and other patient
296	safety data as defined in s. 766.1016.
297	(b)  The existence of a medical injury does shall not
298	create any inference or presumption of negligence against a
299	health care provider, and the claimant must maintain the burden
300	of proving that an injury was proximately caused by a breach of
301	the prevailing professional standard of care by the health care
302	provider. Any records, policies, or testimony of an insurer's
303	reimbursement policies or reimbursement determination regarding
304	the care provided to the plaintiff are not admissible as
305	evidence in any civil action. However, the discovery of the
306	presence of a foreign body, such as a sponge, clamp, forceps,
307	surgical needle, or other paraphernalia commonly used in
308	surgical, examination, or diagnostic procedures, shall be prima
309	facie evidence of negligence on the part of the health care
310	provider.
311	(4)(a)  The Legislature is cognizant of the changing trends
312	and techniques for the delivery of health care in this state and
313	the discretion that is inherent in the diagnosis, care, and
314	treatment of patients by different health care providers. The
315	failure of a health care provider to order, perform, or
316	administer supplemental diagnostic tests is shall not be
317	actionable if the health care provider acted in good faith and
318	with due regard for the prevailing professional standard of
319	care.
320	(b)  In an action for damages based on death or personal
321	injury which alleges that such death or injury resulted from the
322	failure of a health care provider to order, perform, or
323	administer supplemental diagnostic tests, the claimant has the
324	burden of proving by clear and convincing evidence that the
325	alleged actions of the health care provider represented a breach
326	of the prevailing professional standard of care.
327	(5)  A person may not give expert testimony concerning the
328	prevailing professional standard of care unless the that person
329	is a licensed health care provider who holds an active and valid
330	license and conducts a complete review of the pertinent medical
331	records and meets the following criteria:
332	(a)  If the health care provider against whom or on whose
333	behalf the testimony is offered is a specialist, the expert
334	witness must:
335	1.  Specialize in the same specialty as the health care
336	provider against whom or on whose behalf the testimony is
337	offered; or specialize in a similar specialty that includes the
338	evaluation, diagnosis, or treatment of the medical condition
339	that is the subject of the claim and have prior experience
340	treating similar patients; and
341	2.  Have devoted professional time during the 5 3 years
342	immediately preceding the date of the occurrence that is the
343	basis for the action to:
344	a.  The active clinical practice of, or consulting with
345	respect to, the same or similar specialty that includes the
346	evaluation, diagnosis, or treatment of the medical condition
347	that is the subject of the claim and have prior experience
348	treating similar patients;
349	b.  Instruction of students in an accredited health
350	professional school or accredited residency or clinical research
351	program in the same or similar specialty; or
352	c.  A clinical research program that is affiliated with an
353	accredited health professional school or accredited residency or
354	clinical research program in the same or similar specialty.
355	(b)  If the health care provider against whom or on whose
356	behalf the testimony is offered is a general practitioner, the
357	expert witness must have devoted professional time during the 5
358	years immediately preceding the date of the occurrence that is
359	the basis for the action to:
360	1.  The active clinical practice or consultation as a
361	general practitioner;
362	2.  The instruction of students in an accredited health
363	professional school or accredited residency program in the
364	general practice of medicine; or
365	3.  A clinical research program that is affiliated with an
366	accredited medical school or teaching hospital and that is in
367	the general practice of medicine.
368	(c)  If the health care provider against whom or on whose
369	behalf the testimony is offered is a health care provider other
370	than a specialist or a general practitioner, the expert witness
371	must have devoted professional time during the 5 3 years
372	immediately preceding the date of the occurrence that is the
373	basis for the action to:
374	1.  The active clinical practice of, or consulting with
375	respect to, the same or similar health profession as the health
376	care provider against whom or on whose behalf the testimony is
377	offered;
378	2.  The instruction of students in an accredited health
379	professional school or accredited residency program in the same
380	or similar health profession in which the health care provider
381	against whom or on whose behalf the testimony is offered; or
382	3.  A clinical research program that is affiliated with an
383	accredited medical school or teaching hospital and that is in
384	the same or similar health profession as the health care
385	provider against whom or on whose behalf the testimony is
386	offered.
387	(12)  If a physician licensed under chapter 458 or chapter
388	459 is the party against whom, or on whose behalf, expert
389	testimony about the prevailing professional standard of care is
390	offered, the expert witness must be licensed under chapter 458
391	or chapter 459 or possess a valid expert witness certificate
392	issued under s. 458.3175 or s. 459.0066.
393	(13)  A health care provider's failure to comply with or
394	breach of any federal requirement is not admissible as evidence
395	in any medical negligence case in this state.
396	Section 9.  Paragraph (a) of subsection (2), subsection
397	(5), and paragraph (b) of subsection (6) of section 766.106,
398	Florida Statutes, are amended to read:
399	766.106  Notice before filing action for medical
400	negligence; presuit screening period; offers for admission of
401	liability and for arbitration; informal discovery; review.-
402	(2)  PRESUIT NOTICE.-
403	(a)  After completion of presuit investigation pursuant to
404	s. 766.203(2) and prior to filing a complaint for medical
405	negligence, a claimant shall notify each prospective defendant
406	by certified mail, return receipt requested, of intent to
407	initiate litigation for medical negligence. Notice to each
408	prospective defendant must include, if available, a list of all
409	known health care providers seen by the claimant for the
410	injuries complained of subsequent to the alleged act of
411	negligence, all known health care providers during the 2-year
412	period prior to the alleged act of negligence who treated or
413	evaluated the claimant, and copies of all of the medical records
414	relied upon by the expert in signing the affidavit, and the
415	executed authorization form provided in s. 766.1065. The
416	requirement of providing the list of known health care providers
417	may not serve as grounds for imposing sanctions for failure to
418	provide presuit discovery.
419	(5) DISCOVERY AND ADMISSIBILITY.-A No statement,
420	discussion, written document, report, or other work product
421	generated by the presuit screening process is not discoverable
422	or admissible in any civil action for any purpose by the
423	opposing party. All participants, including, but not limited to,
424	physicians, investigators, witnesses, and employees or
425	associates of the defendant, are immune from civil liability
426	arising from participation in the presuit screening process.
427	This subsection does not prevent a physician licensed under
428	chapter 458 or chapter 459 who submits a verified written expert
429	medical opinion from being subject to denial of a license or
430	disciplinary action under s. 458.331(1)(oo) or s.
431	459.015(1)(qq).
432	(6)  INFORMAL DISCOVERY.-
433	(b)  Informal discovery may be used by a party to obtain
434	unsworn statements, the production of documents or things, and
435	physical and mental examinations, as follows:
436	1.  Unsworn statements.-Any party may require other parties
437	to appear for the taking of an unsworn statement. Such
438	statements may be used only for the purpose of presuit screening
439	and are not discoverable or admissible in any civil action for
440	any purpose by any party. A party desiring to take the unsworn
441	statement of any party must give reasonable notice in writing to
442	all parties. The notice must state the time and place for taking
443	the statement and the name and address of the party to be
444	examined. Unless otherwise impractical, the examination of any
445	party must be done at the same time by all other parties. Any
446	party may be represented by counsel at the taking of an unsworn
447	statement. An unsworn statement may be recorded electronically,
448	stenographically, or on videotape. The taking of unsworn
449	statements is subject to the provisions of the Florida Rules of
450	Civil Procedure and may be terminated for abuses.
451	2.  Documents or things.-Any party may request discovery of
452	documents or things. The documents or things must be produced,
453	at the expense of the requesting party, within 20 days after the
454	date of receipt of the request. A party is required to produce
455	discoverable documents or things within that party's possession
456	or control. Medical records shall be produced as provided in s.
457	766.204.
458	3.  Physical and mental examinations.-A prospective
459	defendant may require an injured claimant to appear for
460	examination by an appropriate health care provider. The
461	prospective defendant shall give reasonable notice in writing to
462	all parties as to the time and place for examination. Unless
463	otherwise impractical, a claimant is required to submit to only
464	one examination on behalf of all potential defendants. The
465	practicality of a single examination must be determined by the
466	nature of the claimant's condition, as it relates to the
467	liability of each prospective defendant. Such examination report
468	is available to the parties and their attorneys upon payment of
469	the reasonable cost of reproduction and may be used only for the
470	purpose of presuit screening. Otherwise, such examination report
471	is confidential and exempt from the provisions of s. 119.07(1)
472	and s. 24(a), Art. I of the State Constitution.
473	4.  Written questions.-Any party may request answers to
474	written questions, the number of which may not exceed 30,
475	including subparts. A response must be made within 20 days after
476	receipt of the questions.
477	5.  Ex parte interviews of treating health care providers.-
478	A prospective defendant or his or her legal representative shall
479	have access to interview the claimant's treating health care
480	providers without notice to or the presence of the claimant or
481	the claimant's legal representative.
482	6.5.  Unsworn statements of treating health care providers
483	Medical information release.-The claimant must execute a medical
484	information release that allows A prospective defendant or his
485	or her legal representative may also to take unsworn statements
486	of the claimant's treating health care providers physicians. The
487	statements must be limited to those areas that are potentially
488	relevant to the claim of personal injury or wrongful death.
489	Subject to the procedural requirements of subparagraph 1., a
490	prospective defendant may take unsworn statements from a
491	claimant's treating physicians. Reasonable notice and
492	opportunity to be heard must be given to the claimant or the
493	claimant's legal representative before taking unsworn
494	statements. The claimant or claimant's legal representative has
495	the right to attend the taking of such unsworn statements.
496	Section 10.  Section 766.1065, Florida Statutes, is created
497	to read:
498	766.1065  Authorization for release of protected health
499	information.-
500	(1)  Presuit notice of intent to initiate litigation for
501	medical negligence under s. 766.106(2) must be accompanied by an
502	authorization for release of protected health information in the
503	form specified by this section, authorizing the disclosure of
504	protected health information that is potentially relevant to the
505	claim of personal injury or wrongful death. The presuit notice
506	is void if this authorization does not accompany the presuit
507	notice and other materials required by s. 766.106(2).
508	(2)  If the authorization required by this section is
509	revoked, the presuit notice under s. 766.106(2) is deemed
510	retroactively void from the date of issuance, and any tolling
511	effect that the presuit notice may have had on any applicable
512	statute-of-limitations period is retroactively rendered void.
513	(3)  The authorization required by this section shall be in
514	the following form and shall be construed in accordance with the
515	"Standards for Privacy of Individually Identifiable Health
516	Information" in 45 C.F.R. parts 160 and 164:
517
518	AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
519
520	A.  I,_(...Name of patient or authorized
521	representative...) [hereinafter "Patient"], authorize that
522	(...Name of health care provider to whom the presuit
523	notice is directed...) and his/her/its insurer(s), self-
524	insurer(s), and attorney(s) may obtain and disclose
525	(within the parameters set out below) the protected health
526	information described below for the following specific
527	purposes:
528	1.  Facilitating the investigation and evaluation of
529	the medical negligence claim described in the accompanying
530	presuit notice; or
531	2.  Defending against any litigation arising out of
532	the medical negligence claim made on the basis of the
533	accompanying presuit notice.
534	B.  The health information obtained, used, or
535	disclosed extends to, and includes, the verbal as well as
536	the written and is described as follows:
537	1.  The health information in the custody of the
538	following health care providers who have examined,
539	evaluated, or treated the Patient in connection with
540	injuries complained of after the alleged act of
541	negligence: (List the name and current address of all
542	health care providers). This authorization extends to any
543	additional health care providers that may in the future
544	evaluate, examine, or treat the Patient for the injuries
545	complained of.
546	2.  The health information in the custody of the
547	following health care providers who have examined,
548	evaluated, or treated the Patient during a period
549	commencing 2 years before the incident which is the basis
550	of the accompanying presuit notice.
551
552	(List the name and current address of such health care
553	providers, if applicable.)
554
555	C.  This authorization does not apply to the
556	following list of health care providers possessing health
557	care information about the Patient because the Patient
558	certifies that such health care information is not
559	potentially relevant to the claim of personal injury or
560	wrongful death which is the basis of the accompanying
561	presuit notice.
562
563	(List the name of each health care provider to whom this
564	authorization does not apply and the inclusive dates of
565	examination, evaluation, or treatment to be withheld from
566	disclosure. If none, specify "none.")
567
568	D.  The persons or class of persons to whom the
569	Patient authorizes such health information to be disclosed
570	or by whom such health information is to be used:
571	1.  Any health care provider providing care or
572	treatment for the Patient.
573	2.  Any liability insurer or self-insurer providing
574	liability insurance coverage, self-insurance, or defense
575	to any health care provider to whom presuit notice is
576	given regarding the care and treatment of the Patient.
577	3.  Any consulting or testifying expert employed by
578	or on behalf of (name of health care provider to whom
579	presuit notice was given) his/her/its insurer(s), self-
580	insurer(s), or attorney(s) regarding to the matter of the
581	presuit notice accompanying this authorization.
582	4.  Any attorney (including secretarial, clerical, or
583	paralegal staff) employed by or on behalf of (name of
584	health care provider to whom presuit notice was given)
585	regarding the matter of the presuit notice accompanying
586	this authorization.
587	5.  Any trier of the law or facts relating to any
588	suit filed seeking damages arising out of the medical care
589	or treatment of the Patient.
590	E.  This authorization expires upon resolution of the
591	claim or at the conclusion of any litigation instituted in
592	connection with the matter of the presuit notice
593	accompanying this authorization, whichever occurs first.
594	F.  The Patient understands that, without exception,
595	the Patient has the right to revoke this authorization in
596	writing. The Patient further understands that the
597	consequence of any such revocation is that the presuit
598	notice under s. 766.106(2), Florida Statutes, is deemed
599	retroactively void from the date of issuance, and any
600	tolling effect that the presuit notice may have had on any
601	applicable statute-of-limitations period is retroactively
602	rendered void.
603	G.  The Patient understands that signing this
604	authorization is not a condition for continued treatment,
605	payment, enrollment, or eligibility for health plan
606	benefits.
607	H.  The Patient understands that information used or
608	disclosed under this authorization may be subject to
609	additional disclosure by the recipient and may not be
610	protected by federal HIPAA privacy regulations.
611
612	Signature of Patient/Representative: ....
613	Date: ....
614	Name of Patient/Representative: ....
615	Description of Representative's Authority: ....
616	Section 11.  Subsection (2) of section 766.206, Florida
617	Statutes, is amended to read:
618	766.206  Presuit investigation of medical negligence claims
619	and defenses by court.-
620	(2)  If the court finds that the notice of intent to
621	initiate litigation mailed by the claimant does is not comply in
622	compliance with the reasonable investigation requirements of ss.
623	766.201-766.212, including a review of the claim and a verified
624	written medical expert opinion by an expert witness as defined
625	in s. 766.202, or that the authorization accompanying the notice
626	of intent required under s. 766.1065 is not completed in good
627	faith by the claimant, the court shall dismiss the claim, and
628	the person who mailed such notice of intent, whether the
629	claimant or the claimant's attorney, shall be personally liable
630	for all attorney's fees and costs incurred during the
631	investigation and evaluation of the claim, including the
632	reasonable attorney's fees and costs of the defendant or the
633	defendant's insurer.
634	Section 12.  Section 768.0981, Florida Statutes, is amended
635	to read:
636	768.0981  Limitation on actions against insurers, prepaid
637	limited health service organizations, health maintenance
638	organizations, hospitals, or prepaid health clinics.-An entity
639	licensed or certified under chapter 395, chapter 624, chapter
640	636, or chapter 641 is shall not be liable for the medical
641	negligence of a health care provider with whom the licensed or
642	certified entity has entered into a contract, other than an
643	employee of such licensed or certified entity, unless the
644	licensed or certified entity expressly directs or exercises
645	actual control over the specific conduct that caused injury.
646	Section 13.  This act shall take effect July 1, 2011.

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