Bill Text: FL H0479 | 2011 | Regular Session | Comm Sub

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-Comm_Sub.html

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CS/CS/CS/HB 479

1	A bill to be entitled
2	An act relating to medical malpractice; creating ss.
3	458.3175, 459.0066, and 466.005, F.S.; requiring the
4	Department of Health to issue expert witness certificates
5	to certain physicians and dentists licensed outside of the
6	state; providing application and certification
7	requirements; establishing application fees; providing for
8	the validity and use of certifications; exempting
9	physicians and dentists issued certifications from certain
10	licensure and fee requirements; amending ss. 458.331,
11	459.015, and 466.028, F.S.; providing additional acts that
12	constitute grounds for denial of a license or disciplinary
13	action to which penalties apply; providing construction
14	with respect to the doctrine of incorporation by
15	reference; amending ss. 458.351 and 459.026, F.S.;
16	requiring the Board of Medicine and the Board of
17	Osteopathic Medicine to adopt within a specified period
18	certain patient forms specifying cataract surgery risks;
19	specifying that an incident resulting from risks disclosed
20	in the patient form is not an adverse incident; providing
21	for the execution and admissibility of the patient forms
22	in civil and administrative proceedings; creating a
23	rebuttable presumption that a physician disclosed cataract
24	surgery risks if the patient form is executed; amending s.
25	627.4147, F.S.; deleting a requirement that medical
26	malpractice insurance contracts contain a clause
27	authorizing the insurer to make and conclude certain
28	offers within policy limits over the insured's veto;
29	amending s. 766.102, F.S.; defining terms; providing that
30	certain insurance information is not admissible as
31	evidence in medical negligence actions; establishing the
32	burden of proof that a claimant must meet in certain
33	damage claims against health care providers based on death
34	or personal injury; requiring that certain expert
35	witnesses who provide certain expert testimony meet
36	certain licensure or certification requirements; excluding
37	a health care provider's failure to comply with or breach
38	of federal requirements from evidence in medical
39	negligence cases in the state; amending s. 768.0981, F.S.;
40	limiting the liability of hospitals related to certain
41	medical negligence claims; providing an effective date.
42
43	Be It Enacted by the Legislature of the State of Florida:
44
45	Section 1.  Section 458.3175, Florida Statutes, is created
46	to read:
47	458.3175  Expert witness certificate.-
48	(1)(a)  The department shall issue a certificate
49	authorizing a physician who holds an active and valid license to
50	practice medicine in another state or a province of Canada to
51	provide expert testimony in this state, if the physician submits
52	to the department:
53	1.  A complete registration application containing the
54	physician's legal name, mailing address, telephone number,
55	business locations, the names of the jurisdictions where the
56	physician holds an active and valid license to practice
57	medicine, and the license number or other identifying number
58	issued to the physician by the jurisdiction's licensing entity;
59	and
60	2.  An application fee of $50.
61	(b)  The department shall approve an application for an
62	expert witness certificate within 7 business days after receipt
63	of the completed application and payment of the application fee
64	if the applicant holds an active and valid license to practice
65	medicine in another state or a province of Canada and has not
66	had a previous expert witness certificate revoked by the board.
67	An application is approved by default if the department does not
68	act upon the application within the required period. A physician
69	must notify the department in writing of his or her intent to
70	rely on a certificate approved by default.
71	(c)  An expert witness certificate is valid for 2 years
72	after the date of issuance.
73	(2)  An expert witness certificate authorizes the physician
74	to whom the certificate is issued to do only the following:
75	(a)  Provide a verified written medical expert opinion as
76	provided in s. 766.203.
77	(b)  Provide expert testimony about the prevailing
78	professional standard of care in connection with medical
79	negligence litigation pending in this state against a physician
80	licensed under this chapter or chapter 459.
81	(3)  An expert witness certificate does not authorize a
82	physician to engage in the practice of medicine as defined in s.
83	458.305. A physician issued a certificate under this section who
84	does not otherwise practice medicine in this state is not
85	required to obtain a license under this chapter or pay any
86	license fees, including, but not limited to, a neurological
87	injury compensation assessment. An expert witness certificate
88	shall be treated as a license in any disciplinary action, and
89	the holder of an expert witness certificate shall be subject to
90	discipline by the board.
91	Section 2.  Subsection (11) is added to section 458.331,
92	Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
93	of that section are redesignated as paragraphs (pp) through
94	(rr), respectively, and a new paragraph (oo) is added to that
95	subsection, to read:
96	458.331  Grounds for disciplinary action; action by the
97	board and department.-
98	(1)  The following acts constitute grounds for denial of a
99	license or disciplinary action, as specified in s. 456.072(2):
100	(oo)  Providing misleading, deceptive, or fraudulent expert
101	witness testimony related to the practice of medicine.
102	(11)  The purpose of this section is to facilitate uniform
103	discipline for those acts made punishable under this section
104	and, to this end, a reference to this section constitutes a
105	general reference under the doctrine of incorporation by
106	reference.
107	Section 3.  Subsection (6) of section 458.351, Florida
108	Statutes, is renumbered as subsection (7), and a new subsection
109	(6) is added to that section to read:
110	458.351  Reports of adverse incidents in office practice
111	settings.-
112	(6)(a)  The board shall adopt rules establishing a standard
113	informed consent form that sets forth the recognized specific
114	risks related to cataract surgery. The board must propose such
115	rules within 90 days after the effective date of this
116	subsection.
117	(b)  Before formally proposing the rule, the board must
118	consider information from physicians licensed under this chapter
119	or chapter 459 regarding recognized specific risks related to
120	cataract surgery and the standard informed consent forms adopted
121	for use in the medical field by other states.
122	(c)  A patient's informed consent is not executed until the
123	patient, or a person authorized by the patient to give consent,
124	and a competent witness sign the form adopted by the board.
125	(d)  An incident resulting from recognized specific risks
126	described in the signed consent form is not considered an
127	adverse incident for purposes of s. 395.0197 and this section.
128	(e)  In a civil action or administrative proceeding against
129	a physician based on his or her alleged failure to properly
130	disclose the risks of cataract surgery, a patient's informed
131	consent executed as provided in paragraph (c) on the form
132	adopted by the board is admissible as evidence and creates a
133	rebuttable presumption that the physician properly disclosed the
134	risks.
135	Section 4.  Section 459.0066, Florida Statutes, is created
136	to read:
137	459.0066  Expert witness certificate.-
138	(1)(a)  The department shall issue a certificate
139	authorizing a physician who holds an active and valid license to
140	practice osteopathic medicine in another state or a province of
141	Canada to provide expert testimony in this state, if the
142	physician submits to the department:
143	1.  A complete registration application containing the
144	physician's legal name, mailing address, telephone number,
145	business locations, the names of the jurisdictions where the
146	physician holds an active and valid license to practice
147	osteopathic medicine, and the license number or other
148	identifying number issued to the physician by the jurisdiction's
149	licensing entity; and
150	2.  An application fee of $50.
151	(b)  The department shall approve an application for an
152	expert witness certificate within 7 business days after receipt
153	of the completed application and payment of the application fee
154	if the applicant holds an active and valid license to practice
155	osteopathic medicine in another state or a province of Canada
156	and has not had a previous expert witness certificate revoked by
157	the board. An application is approved by default if the
158	department does not act upon the application within the required
159	period. A physician must notify the department in writing of his
160	or her intent to rely on a certificate approved by default.
161	(c)  An expert witness certificate is valid for 2 years
162	after the date of issuance.
163	(2)  An expert witness certificate authorizes the physician
164	to whom the certificate is issued to do only the following:
165	(a)  Provide a verified written medical expert opinion as
166	provided in s. 766.203.
167	(b)  Provide expert testimony about the prevailing
168	professional standard of care in connection with medical
169	negligence litigation pending in this state against a physician
170	licensed under chapter 458 or this chapter.
171	(3)  An expert witness certificate does not authorize a
172	physician to engage in the practice of osteopathic medicine as
173	defined in s. 459.003. A physician issued a certificate under
174	this section who does not otherwise practice osteopathic
175	medicine in this state is not required to obtain a license under
176	this chapter or pay any license fees, including, but not limited
177	to, a neurological injury compensation assessment. An expert
178	witness certificate shall be treated as a license in any
179	disciplinary action, and the holder of an expert witness
180	certificate shall be subject to discipline by the board.
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.  Section 466.005, Florida Statutes, is created
199	to read:
200	466.005  Expert witness certificate.-
201	(1)(a)  The department shall issue a certificate
202	authorizing a dentist who holds an active and valid license to
203	practice dentistry in another state or a province of Canada to
204	provide expert testimony in this state, if the dentist submits
205	to the department:
206	1.  A complete registration application containing the
207	dentist's legal name, mailing address, telephone number,
208	business locations, the names of the jurisdictions where the
209	dentist holds an active and valid license to practice dentistry,
210	and the license number or other identifying number issued to the
211	dentist by the jurisdiction's licensing entity; and
212	2.  An application fee of $50.
213	(b)  The department shall approve an application for an
214	expert witness certificate within 7 business days after receipt
215	of the completed application and payment of the application fee
216	if the applicant holds an active and valid license to practice
217	dentistry in another state or a province of Canada and has not
218	had a previous expert witness certificate revoked by the board.
219	An application is approved by default if the department does not
220	act upon the application within the required period. A dentist
221	must notify the department in writing of his or her intent to
222	rely on a certificate approved by default.
223	(c)  An expert witness certificate is valid for 2 years
224	after the date of issuance.
225	(2)  An expert witness certificate authorizes the dentist
226	to whom the certificate is issued to do only the following:
227	(a)  Provide a verified written medical expert opinion as
228	provided in s. 766.203.
229	(b)  Provide expert testimony about the prevailing
230	professional standard of care in connection with medical
231	negligence litigation pending in this state against a dentist
232	licensed under this chapter.
233	(3)  An expert witness certificate does not authorize a
234	dentist to engage in the practice of dentistry as defined in s.
235	466.003. A dentist issued a certificate under this section who
236	does not otherwise practice dentistry in this state is not
237	required to obtain a license under this chapter or pay any
238	license fees. An expert witness certificate shall be treated as
239	a license in any disciplinary action, and the holder of an
240	expert witness certificate shall be subject to discipline by the
241	board.
242	Section 7.  Subsection (8) is added to section 466.028,
243	Florida Statutes, paragraph (ll) of subsection (1) of that
244	section is redesignated as paragraph (mm), and a new paragraph
245	(ll) is added to that subsection, to read:
246	466.028  Grounds for disciplinary action; action by the
247	board.-
248	(1)  The following acts constitute grounds for denial of a
249	license or disciplinary action, as specified in s. 456.072(2):
250	(ll)  Providing misleading, deceptive, or fraudulent expert
251	witness testimony related to the practice of dentistry.
252	(8)  The purpose of this section is to facilitate uniform
253	discipline for those acts made punishable under this section
254	and, to this end, a reference to this section constitutes a
255	general reference under the doctrine of incorporation by
256	reference.
257	Section 8.  Subsection (6) of section 459.026, Florida
258	Statutes, is renumbered as subsection (7), and a new subsection
259	(6) is added to that section to read:
260	459.026  Reports of adverse incidents in office practice
261	settings.-
262	(6)(a)  The board shall adopt rules establishing a standard
263	informed consent form that sets forth the recognized specific
264	risks related to cataract surgery. The board must propose such
265	rules within 90 days after the effective date of this
266	subsection.
267	(b)  Before formally proposing the rule, the board must
268	consider information from physicians licensed under chapter 458
269	or this chapter regarding recognized specific risks related to
270	cataract surgery and the standard informed consent forms adopted
271	for use in the medical field by other states.
272	(c)  A patient's informed consent is not executed until the
273	patient, or a person authorized by the patient to give consent,
274	and a competent witness sign the form adopted by the board.
275	(d)  An incident resulting from recognized specific risks
276	described in the signed consent form is not considered an
277	adverse incident for purposes of s. 395.0197 and this section.
278	(e)  In a civil action or administrative proceeding against
279	a physician based on his or her alleged failure to properly
280	disclose the risks of cataract surgery, a patient's informed
281	consent executed as provided in paragraph (c) on the form
282	adopted by the board is admissible as evidence and creates a
283	rebuttable presumption that the physician properly disclosed the
284	risks.
285	Section 9.  Paragraph (b) of subsection (1) of section
286	627.4147, Florida Statutes, is amended to read:
287	627.4147  Medical malpractice insurance contracts.-
288	(1)  In addition to any other requirements imposed by law,
289	each self-insurance policy as authorized under s. 627.357 or s.
290	624.462 or insurance policy providing coverage for claims
291	arising out of the rendering of, or the failure to render,
292	medical care or services, including those of the Florida Medical
293	Malpractice Joint Underwriting Association, shall include:
294	(b)1.  Except as provided in subparagraph 2., a clause
295	authorizing the insurer or self-insurer to determine, to make,
296	and to conclude, without the permission of the insured, any
297	offer of admission of liability and for arbitration pursuant to
298	s. 766.106, settlement offer, or offer of judgment, if the offer
299	is within the policy limits. It is against public policy for any
300	insurance or self-insurance policy to contain a clause giving
301	the insured the exclusive right to veto any offer for admission
302	of liability and for arbitration made pursuant to s. 766.106,
303	settlement offer, or offer of judgment, when such offer is
304	within the policy limits. However, any offer of admission of
305	liability, settlement offer, or offer of judgment made by an
306	insurer or self-insurer shall be made in good faith and in the
307	best interests of the insured.
308	2.a.  With respect to dentists licensed under chapter 466,
309	A clause clearly stating whether or not the insured has the
310	exclusive right to veto any offer of admission of liability and
311	for arbitration pursuant to s. 766.106, settlement offer, or
312	offer of judgment if the offer is within policy limits. An
313	insurer or self-insurer shall not make or conclude, without the
314	permission of the insured, any offer of admission of liability
315	and for arbitration pursuant to s. 766.106, settlement offer, or
316	offer of judgment, if such offer is outside the policy limits.
317	However, any offer for admission of liability and for
318	arbitration made under s. 766.106, settlement offer, or offer of
319	judgment made by an insurer or self-insurer shall be made in
320	good faith and in the best interest of the insured.
321	2.b.  If the policy contains a clause stating the insured
322	does not have the exclusive right to veto any offer or admission
323	of liability and for arbitration made pursuant to s. 766.106,
324	settlement offer or offer of judgment, the insurer or self-
325	insurer shall provide to the insured or the insured's legal
326	representative by certified mail, return receipt requested, a
327	copy of the final offer of admission of liability and for
328	arbitration made pursuant to s. 766.106, settlement offer or
329	offer of judgment and at the same time such offer is provided to
330	the claimant. A copy of any final agreement reached between the
331	insurer and claimant shall also be provided to the insurer or
332	his or her legal representative by certified mail, return
333	receipt requested not more than 10 days after affecting such
334	agreement.
335	Section 10.  Subsections (3), (4), and (5) of section
336	766.102, Florida Statutes, are amended, subsection (12) of that
337	section is renumbered as subsection (14), and new subsections
338	(12) and (13) are added to that section, to read:
339	766.102  Medical negligence; standards of recovery; expert
340	witness.-
341	(3)(a)  As used in this subsection, the term:
342	1.  "Insurer" means any public or private insurer,
343	including the Centers for Medicare and Medicaid Services.
344	2.  "Reimbursement determination" means an insurer's
345	determination of the amount that the insurer will reimburse a
346	health care provider for health care services.
347	3.  "Reimbursement policies" means an insurer's policies
348	and procedures governing its decisions regarding health
349	insurance coverage and method of payment and the data upon which
350	such policies and procedures are based, including, but not
351	limited to, data from national research groups and other patient
352	safety data as defined in s. 766.1016.
353	(b)  The existence of a medical injury does shall not
354	create any inference or presumption of negligence against a
355	health care provider, and the claimant must maintain the burden
356	of proving that an injury was proximately caused by a breach of
357	the prevailing professional standard of care by the health care
358	provider. Any records, policies, or testimony of an insurer's
359	reimbursement policies or reimbursement determination regarding
360	the care provided to the plaintiff are not admissible as
361	evidence in any medical negligence action. However, the
362	discovery of the presence of a foreign body, such as a sponge,
363	clamp, forceps, surgical needle, or other paraphernalia commonly
364	used in surgical, examination, or diagnostic procedures, shall
365	be prima facie evidence of negligence on the part of the health
366	care provider.
367	(4)(a)  The Legislature is cognizant of the changing trends
368	and techniques for the delivery of health care in this state and
369	the discretion that is inherent in the diagnosis, care, and
370	treatment of patients by different health care providers. The
371	failure of a health care provider to order, perform, or
372	administer supplemental diagnostic tests is shall not be
373	actionable if the health care provider acted in good faith and
374	with due regard for the prevailing professional standard of
375	care.
376	(b)  In an action for damages based on death or personal
377	injury which alleges that such death or injury resulted from the
378	failure of a health care provider to order, perform, or
379	administer supplemental diagnostic tests, the claimant has the
380	burden of proving by clear and convincing evidence that the
381	alleged actions of the health care provider represented a breach
382	of the prevailing professional standard of care.
383	(5)  A person may not give expert testimony concerning the
384	prevailing professional standard of care unless the that person
385	is a licensed health care provider who holds an active and valid
386	license and conducts a complete review of the pertinent medical
387	records and meets the following criteria:
388	(a)  If the health care provider against whom or on whose
389	behalf the testimony is offered is a specialist, the expert
390	witness must:
391	1.  Specialize in the same specialty as the health care
392	provider against whom or on whose behalf the testimony is
393	offered; or specialize in a similar specialty that includes the
394	evaluation, diagnosis, or treatment of the medical condition
395	that is the subject of the claim and have prior experience
396	treating similar patients; and
397	2.  Have devoted professional time during the 3 years
398	immediately preceding the date of the occurrence that is the
399	basis for the action to:
400	a.  The active clinical practice of, or consulting with
401	respect to, the same or similar specialty that includes the
402	evaluation, diagnosis, or treatment of the medical condition
403	that is the subject of the claim and have prior experience
404	treating similar patients;
405	b.  Instruction of students in an accredited health
406	professional school or accredited residency or clinical research
407	program in the same or similar specialty; or
408	c.  A clinical research program that is affiliated with an
409	accredited health professional school or accredited residency or
410	clinical research program in the same or similar specialty.
411	(b)  If the health care provider against whom or on whose
412	behalf the testimony is offered is a general practitioner, the
413	expert witness must have devoted professional time during the 5
414	years immediately preceding the date of the occurrence that is
415	the basis for the action to:
416	1.  The active clinical practice or consultation as a
417	general practitioner;
418	2.  The instruction of students in an accredited health
419	professional school or accredited residency program in the
420	general practice of medicine; or
421	3.  A clinical research program that is affiliated with an
422	accredited medical school or teaching hospital and that is in
423	the general practice of medicine.
424	(c)  If the health care provider against whom or on whose
425	behalf the testimony is offered is a health care provider other
426	than a specialist or a general practitioner, the expert witness
427	must have devoted professional time during the 3 years
428	immediately preceding the date of the occurrence that is the
429	basis for the action to:
430	1.  The active clinical practice of, or consulting with
431	respect to, the same or similar health profession as the health
432	care provider against whom or on whose behalf the testimony is
433	offered;
434	2.  The instruction of students in an accredited health
435	professional school or accredited residency program in the same
436	or similar health profession in which the health care provider
437	against whom or on whose behalf the testimony is offered; or
438	3.  A clinical research program that is affiliated with an
439	accredited medical school or teaching hospital and that is in
440	the same or similar health profession as the health care
441	provider against whom or on whose behalf the testimony is
442	offered.
443	(12)  If a physician licensed under chapter 458 or chapter
444	459 or a dentist licensed under chapter 466 is the party against
445	whom, or on whose behalf, expert testimony about the prevailing
446	professional standard of care is offered, the expert witness
447	must be licensed under chapter 458, chapter 459, or chapter 466
448	or possess a valid expert witness certificate issued under s.
449	458.3175, s. 459.0066, or s. 466.005.
450	(13)  A health care provider's failure to comply with or
451	breach of any federal requirement is not admissible as evidence
452	in any medical negligence case in this state.
453	Section 11.  Section 768.0981, Florida Statutes, is amended
454	to read:
455	768.0981  Limitation on actions against insurers, prepaid
456	limited health service organizations, health maintenance
457	organizations, hospitals, or prepaid health clinics.-An entity
458	licensed or certified under chapter 395, chapter 624, chapter
459	636, or chapter 641 is shall not be liable for the medical
460	negligence of a health care provider with whom the licensed or
461	certified entity has entered into a contract, other than an
462	employee of such licensed or certified entity, unless the
463	licensed or certified entity expressly directs or exercises
464	actual control over the specific conduct that caused injury.
465	Section 12.  This act shall take effect July 1, 2011.

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