Bill Text: FL S0886 | 2013 | Regular Session | Introduced
Bill Title: Medical Negligence Actions
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2013-05-03 - Died in Judiciary, companion bill(s) passed, see SB 1792 (Ch. 2013-108) [S0886 Detail]
Download: Florida-2013-S0886-Introduced.html
Florida Senate - 2013 SB 886
By Senator Thrasher
6-01051A-13 2013886__
1 A bill to be entitled
2 An act relating to medical negligence actions;
3 amending s. 456.057, F.S.; deleting a provision
4 prohibiting the discussion of a patient’s medical
5 condition; providing circumstance under which patient
6 records may be released without prior written
7 authorization; revising conditions under which
8 confidential patient information acquired in the
9 course of care or treatment may be disclosed by a
10 health care practitioner; amending s. 766.102, F.S.;
11 establishing standard of proof in actions based on the
12 failure of a health care provider to order, perform,
13 or administer certain tests; shifting burden of proof
14 to claimant; revising qualifications to give expert
15 testimony on the prevailing professional standard of
16 care; deleting provision regarding limitations of
17 section; amending s. 766.106, F.S.; providing that a
18 prospective defendant may conduct an ex parte
19 interview with a claimant’s treating health care
20 provider as a tool of informal discovery; amending s.
21 766.1065, F.S.; revising the form for the
22 authorization for release of protected health
23 information; providing for the release of protected
24 heath information to certain treating health care
25 providers, insurers, and attorneys; authorizing a
26 treating health care provider, insurer, or attorney to
27 use protected health information in connection with
28 legal services relating to a medical negligence claim;
29 authorizing certain individuals and entities to
30 conduct ex parte interviews with the claimant’s health
31 care providers; creating s. 766.1091, F.S.;
32 authorizing a health care provider or health care
33 clinic and a patient or prospective patient to agree
34 to submit a claim of medical negligence to
35 arbitration; requiring that the arbitration agreement
36 be governed by ch. 682, F.S.; authorizing the
37 arbitration agreement to contain a provision that
38 limits an award of damages; amending s. 768.0981,
39 F.S.; prescribing limitations on medical negligence
40 actions against hospitals; providing an effective
41 date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Subsections (7) and (8) of section 456.057,
46 Florida Statutes, are amended to read:
47 456.057 Ownership and control of patient records; report or
48 copies of records to be furnished.—
49 (7)(a) Except as otherwise provided in this section and in
50 s. 440.13(4)(c), such records may not be furnished to, and the
51 medical condition of a patient may not be discussed with, any
52 person other than the patient, or the patient’s legal
53 representative, or other health care practitioners and providers
54 involved in the patient’s care or treatment of the patient,
55 except upon written authorization from of the patient. However,
56 such records may be furnished without written authorization
57 under the following circumstances:
58 1. To any person, firm, or corporation that has procured or
59 furnished such care examination or treatment with the patient’s
60 consent.
61 2. When compulsory physical examination is made pursuant to
62 Rule 1.360, Florida Rules of Civil Procedure, in which case
63 copies of the medical records shall be furnished to both the
64 defendant and the plaintiff.
65 3. In any civil or criminal action, unless otherwise
66 prohibited by law, upon the issuance of a subpoena from a court
67 of competent jurisdiction and proper notice to the patient or
68 the patient’s legal representative by the party seeking such
69 records.
70 4. For statistical and scientific research, provided the
71 information is abstracted in such a way as to protect the
72 identity of the patient or provided written permission is
73 received from the patient or the patient’s legal representative.
74 5. To a regional poison control center for purposes of
75 treating a poison episode under evaluation, case management of
76 poison cases, or compliance with data collection and reporting
77 requirements of s. 395.1027 and the professional organization
78 that certifies poison control centers in accordance with federal
79 law.
80 6. To the attorney for the health care practitioner or
81 provider, or to the attorney’s staff, for the purpose of
82 obtaining legal services, whether the attorney is hired directly
83 by the practitioner or provider or by their insurer.
84 (b) Absent a specific written release or authorization
85 permitting utilization of patient information for solicitation
86 or marketing the sale of goods or services, any use of that
87 information for those purposes is prohibited.
88 (8) Information disclosed to a health care practitioner by
89 a patient in the course of the care and treatment of such
90 patient is confidential and may be disclosed only under the
91 following circumstances:
92 (a) To other health care practitioners and providers
93 involved in the care or treatment of the patient.
94 (b) Pursuant to s. 766.106(6)(b)5.
95 (c) As provided for in the authorization for release of
96 protected health information filed by the patient pursuant to s.
97 766.1065.
98 (d) If permitted by written authorization from the patient.
99 (e) If compelled by subpoena at a deposition, evidentiary
100 hearing, or trial for which proper notice has been given.
101 (f) To the attorney for the health care practitioner or
102 provider, or to the attorney’s staff, whether the attorney is
103 hired directly by the practitioner or provider or by their
104 insurer.
105 (g) If the health care practitioner or provider is, or
106 reasonably expects to be, named as a defendant in a medical
107 negligence action or administrative proceeding Except in a
108 medical negligence action or administrative proceeding when a
109 health care practitioner or provider is or reasonably expects to
110 be named as a defendant, information disclosed to a health care
111 practitioner by a patient in the course of the care and
112 treatment of such patient is confidential and may be disclosed
113 only to other health care practitioners and providers involved
114 in the care or treatment of the patient, or if permitted by
115 written authorization from the patient or compelled by subpoena
116 at a deposition, evidentiary hearing, or trial for which proper
117 notice has been given.
118 Section 2. Subsection (4), paragraph (a) of subsection (5),
119 and subsection (14) of section 766.102, Florida Statutes, are
120 amended to read:
121 766.102 Medical negligence; standards of recovery; expert
122 witness.—
123 (4) The Legislature is cognizant of the changing trends and
124 techniques for the delivery of health care in this state and the
125 discretion that is inherent in the diagnosis, care, and
126 treatment of patients by different health care providers. The
127 failure of a health care provider to order, perform, or
128 administer supplemental diagnostic tests is shall not be
129 actionable if the health care provider acted in good faith and
130 with due regard for the prevailing professional standard of
131 care. In an action for damages based on death or personal injury
132 which alleges that such death or injury resulted from the
133 failure of a health care provider to order, perform, or
134 administer supplemental diagnostic tests, the claimant has the
135 burden of proving by clear and convincing evidence that the
136 alleged action of the health care provider represented a breach
137 of the prevailing professional standard of care.
138 (5) A person may not give expert testimony concerning the
139 prevailing professional standard of care unless the person is a
140 health care provider who holds an active and valid license and
141 conducts a complete review of the pertinent medical records and
142 meets the following criteria:
143 (a) If the health care provider against whom or on whose
144 behalf the testimony is offered is a specialist, the expert
145 witness must:
146 1. Specialize in the same specialty as the health care
147 provider against whom or on whose behalf the testimony is
148 offered; or specialize in a similar specialty that includes the
149 evaluation, diagnosis, or treatment of the medical condition
150 that is the subject of the claim and have prior experience
151 treating similar patients; and
152 2. Have devoted professional time during the 3 years
153 immediately preceding the date of the occurrence that is the
154 basis for the action to:
155 a. The active clinical practice of, or consulting with
156 respect to, the same or similar specialty that includes the
157 evaluation, diagnosis, or treatment of the medical condition
158 that is the subject of the claim and have prior experience
159 treating similar patients;
160 b. Instruction of students in an accredited health
161 professional school or accredited residency or clinical research
162 program in the same or similar specialty; or
163 c. A clinical research program that is affiliated with an
164 accredited health professional school or accredited residency or
165 clinical research program in the same or similar specialty.
166 (14) This section does not limit the power of the trial
167 court to disqualify or qualify an expert witness on grounds
168 other than the qualifications in this section.
169 Section 3. Paragraph (b) of subsection (6) of section
170 766.106, Florida Statutes, is amended to read:
171 766.106 Notice before filing action for medical negligence;
172 presuit screening period; offers for admission of liability and
173 for arbitration; informal discovery; review.—
174 (6) INFORMAL DISCOVERY.—
175 (b) Informal discovery may be used by a party to obtain
176 unsworn statements, the production of documents or things, and
177 physical and mental examinations, as follows:
178 1. Unsworn statements.—Any party may require other parties
179 to appear for the taking of an unsworn statement. Such
180 statements may be used only for the purpose of presuit screening
181 and are not discoverable or admissible in any civil action for
182 any purpose by any party. A party desiring to take the unsworn
183 statement of any party must give reasonable notice in writing to
184 all parties. The notice must state the time and place for taking
185 the statement and the name and address of the party to be
186 examined. Unless otherwise impractical, the examination of any
187 party must be done at the same time by all other parties. Any
188 party may be represented by counsel at the taking of an unsworn
189 statement. An unsworn statement may be recorded electronically,
190 stenographically, or on videotape. The taking of unsworn
191 statements is subject to the provisions of the Florida Rules of
192 Civil Procedure and may be terminated for abuses.
193 2. Documents or things.—Any party may request discovery of
194 documents or things. The documents or things must be produced,
195 at the expense of the requesting party, within 20 days after the
196 date of receipt of the request. A party is required to produce
197 discoverable documents or things within that party’s possession
198 or control. Medical records shall be produced as provided in s.
199 766.204.
200 3. Physical and mental examinations.—A prospective
201 defendant may require an injured claimant to appear for
202 examination by an appropriate health care provider. The
203 prospective defendant shall give reasonable notice in writing to
204 all parties as to the time and place for examination. Unless
205 otherwise impractical, a claimant is required to submit to only
206 one examination on behalf of all potential defendants. The
207 practicality of a single examination must be determined by the
208 nature of the claimant’s condition, as it relates to the
209 liability of each prospective defendant. Such examination report
210 is available to the parties and their attorneys upon payment of
211 the reasonable cost of reproduction and may be used only for the
212 purpose of presuit screening. Otherwise, such examination report
213 is confidential and exempt from the provisions of s. 119.07(1)
214 and s. 24(a), Art. I of the State Constitution.
215 4. Written questions.—Any party may request answers to
216 written questions, the number of which may not exceed 30,
217 including subparts. A response must be made within 20 days after
218 receipt of the questions.
219 5. Ex parte interviews of treating health care providers.—A
220 prospective defendant or his or her legal representative may
221 interview the claimant’s treating health care providers, without
222 notice to, or the presence of, the claimant or the claimant’s
223 legal representative.
224 6.5. Unsworn statements of treating health care providers.
225 A prospective defendant or his or her legal representative may
226 also take unsworn statements of the claimant’s treating health
227 care providers. The statements must be limited to those areas
228 that are potentially relevant to the claim of personal injury or
229 wrongful death. Subject to the procedural requirements of
230 subparagraph 1., a prospective defendant may take unsworn
231 statements from a claimant’s treating physicians. Reasonable
232 notice and opportunity to be heard must be given to the claimant
233 or the claimant’s legal representative before taking unsworn
234 statements. The claimant or claimant’s legal representative has
235 the right to attend the taking of such unsworn statements.
236 Section 4. Subsection (3) of section 766.1065, Florida
237 Statutes, is amended to read:
238 766.1065 Authorization for release of protected health
239 information.—
240 (3) The authorization required by this section shall be in
241 the following form and shall be construed in accordance with the
242 “Standards for Privacy of Individually Identifiable Health
243 Information” in 45 C.F.R. parts 160 and 164:
244
245 AUTHORIZATION FOR RELEASE OF
246 PROTECTED HEALTH INFORMATION
247
248 A. I, (...Name of patient or authorized
249 representative...) [hereinafter “Patient”], authorize
250 that (...Name of health care provider to whom the
251 presuit notice is directed...) and his/her/its
252 insurer(s), self-insurer(s), and attorney(s), and the
253 designated treating health care provider(s) listed
254 below and his/her/its insurer(s), self-insurer(s), and
255 attorney(s) may obtain and disclose (within the
256 parameters set out below) the protected health
257 information described below for the following specific
258 purposes:
259 1. Facilitating the investigation and evaluation
260 of the medical negligence claim described in the
261 accompanying presuit notice; or
262 2. Defending against any litigation arising out
263 of the medical negligence claim made on the basis of
264 the accompanying presuit notice; or.
265 3. Obtaining legal advice or representation
266 arising out of the medical negligence claim described
267 in the accompanying presuit notice.
268 B. The health information obtained, used, or
269 disclosed extends to, and includes, the verbal health
270 information as well as the written health information
271 and is described as follows:
272 1. The health information in the custody of the
273 following health care providers who have examined,
274 evaluated, or treated the Patient in connection with
275 injuries complained of after the alleged act of
276 negligence: (List the name and current address of all
277 health care providers). This authorization extends to
278 any additional health care providers that may in the
279 future evaluate, examine, or treat the Patient for the
280 injuries complained of.
281 2. The health information in the custody of the
282 following health care providers who have examined,
283 evaluated, or treated the Patient during a period
284 commencing 2 years before the incident that is the
285 basis of the accompanying presuit notice.
286
287 (List the name and current address of such health care
288 providers, if applicable.)
289
290 C. This authorization does not apply to the
291 following list of health care providers possessing
292 health care information about the Patient because the
293 Patient certifies that such health care information is
294 not potentially relevant to the claim of personal
295 injury or wrongful death that is the basis of the
296 accompanying presuit notice.
297
298 (List the name of each health care provider to whom
299 this authorization does not apply and the inclusive
300 dates of examination, evaluation, or treatment to be
301 withheld from disclosure. If none, specify “none.”)
302
303 D. The persons or class of persons to whom the
304 Patient authorizes such health information to be
305 disclosed or by whom such health information is to be
306 used:
307 1. Any health care provider providing care or
308 treatment for the Patient.
309 2. Any liability insurer or self-insurer
310 providing liability insurance coverage, self
311 insurance, or defense to any health care provider to
312 whom presuit notice is given, or to any health care
313 provider listed in subsections B.1.-2. above,
314 regarding the care and treatment of the Patient.
315 3. Any consulting or testifying expert employed
316 by or on behalf of (name of health care provider to
317 whom presuit notice was given) and his/her/its
318 insurer(s), self-insurer(s), or attorney(s) regarding
319 the matter of the presuit notice accompanying this
320 authorization.
321 4. Any attorney (including his/her secretarial,
322 clerical, or paralegal staff) employed by or on behalf
323 of (name of health care provider to whom presuit
324 notice was given) or employed by or on behalf of any
325 health care provider(s) listed in subsections B.1.-2.
326 above, regarding the matter of the presuit notice
327 accompanying this authorization or the care and
328 treatment of the Patient.
329 5. Any trier of the law or facts relating to any
330 suit filed seeking damages arising out of the medical
331 care or treatment of the Patient.
332 E. This authorization expressly allows the
333 persons or class of persons listed in subsections
334 D.2.-4. above to interview the health care providers
335 listed in subsections B.1.-2. above, without notice to
336 or the presence of the Patient or the Patient’s
337 attorney.
338 F.E. This authorization expires upon resolution
339 of the claim or at the conclusion of any litigation
340 instituted in connection with the matter of the
341 presuit notice accompanying this authorization,
342 whichever occurs first.
343 G.F. The Patient understands that, without
344 exception, the Patient has the right to revoke this
345 authorization in writing. The Patient further
346 understands that the consequence of any such
347 revocation is that the presuit notice under s.
348 766.106(2), Florida Statutes, is deemed retroactively
349 void from the date of issuance, and any tolling effect
350 that the presuit notice may have had on any applicable
351 statute-of-limitations period is retroactively
352 rendered void.
353 H.G. The Patient understands that signing this
354 authorization is not a condition for continued
355 treatment, payment, enrollment, or eligibility for
356 health plan benefits.
357 I.H. The Patient understands that information
358 used or disclosed under this authorization may be
359 subject to additional disclosure by the recipient and
360 may not be protected by federal HIPAA privacy
361 regulations.
362
363 Signature of Patient/Representative: ....
364 Date: ....
365 Name of Patient/Representative: ....
366 Description of Representative’s Authority: ....
367 Section 5. Section 766.1091, Florida Statutes, is created
368 to read:
369 766.1091 Voluntary binding arbitration; damages.—A health
370 care provider licensed pursuant to chapter 458, chapter 459, or
371 chapter 466; an entity owned in whole or in part by a health
372 care provider licensed pursuant to chapter 458, chapter 459, or
373 chapter 466; or a health care clinic licensed pursuant to part X
374 of chapter 400 and a patient or prospective patient may agree in
375 writing to submit to arbitration any claim for medical
376 negligence that may currently exist or accrue in the future
377 which would otherwise be brought pursuant to the provisions of
378 this chapter. An arbitration agreement entered into pursuant to
379 this section shall be governed by the provisions of chapter 682
380 and may contain a provision that limits the available damages in
381 an arbitration award.
382 Section 6. Section 768.0981, Florida Statutes, is amended
383 to read:
384 768.0981 Limitation on actions against insurers, prepaid
385 limited health service organizations, health maintenance
386 organizations, hospitals, or prepaid health clinics.—An entity
387 licensed or certified under chapter 395, chapter 624, chapter
388 636, or chapter 641 is shall not be liable for the medical
389 negligence of a health care provider with whom the licensed or
390 certified entity has entered into a contract, other than an
391 employee of such licensed or certified entity, unless the
392 licensed or certified entity expressly directs or exercises
393 actual control over the specific conduct that caused injury.
394 Section 7. This act shall take effect July 1, 2013.
