Bill Text: FL S1200 | 2015 | Regular Session | Introduced
Bill Title: Compensation for Personal Injury or Wrongful Death Arising from a Medical Injury
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2015-05-01 - Died in Judiciary [S1200 Detail]
Download: Florida-2015-S1200-Introduced.html
Florida Senate - 2015 SB 1200
By Senator Brandes
22-01131-15 20151200__
1 A bill to be entitled
2 An act relating to compensation for personal injury or
3 wrongful death arising from a medical injury; amending
4 s. 456.013, F.S.; requiring the Department of Health
5 or certain boards thereof to require the completion of
6 a course relating to prevention and communication of
7 medical errors as part of the licensure and renewal
8 process; providing a directive to the Division of Law
9 Revision and Information; creating s. 766.401, F.S.;
10 providing a short title; creating s. 766.402, F.S.;
11 defining terms; creating s. 766.403, F.S.; providing
12 legislative findings and intent; specifying that
13 certain provisions are an exclusive remedy for
14 personal injury or wrongful death; providing for early
15 offer of settlement; prohibiting use of the procedures
16 under this act if a claim has already been settled;
17 prohibiting compensation from being awarded if the
18 application is filed by certain persons; creating s.
19 766.404, F.S.; creating the Patient Compensation
20 System; providing for a Patient Compensation Board;
21 providing for membership, meetings, and certain
22 compensation; providing for specific staff, offices,
23 committees, and panels and the powers and duties
24 thereof; prohibiting certain conflicts of interest;
25 authorizing the board to make rules; creating s.
26 766.405, F.S.; providing a process for filing
27 applications for compensation under the system;
28 providing for notice to the applicant; providing an
29 application filing period; creating s. 766.406, F.S.;
30 requiring individuals with relevant clinical expertise
31 to determine whether the facts stated in the
32 application, prima facie, rise to a claim for medical
33 injury; requiring the Office of Medical Review to
34 immediately notify, by registered or certified mail,
35 specified parties under certain circumstances;
36 requiring the notification to inform the provider that
37 he or she may support the application to expedite the
38 processing of the application; providing a timeframe
39 by which a participating provider may support an
40 application; requiring the Office of Medical Review to
41 send a rejection letter in certain circumstances to
42 the applicant by registered or certified mail to
43 inform the applicant of his or her right to appeal;
44 authorizing the applicant to appeal the office’s
45 determination; requiring specified individuals to
46 review an application that is supported by a
47 participating provider within a specified timeframe;
48 requiring the Office of Medical Review to determine
49 whether the application is valid; requiring the Office
50 of Medical Review to notify the applicant of a
51 rejection of the application if it finds the
52 application is not valid; requiring the Office of
53 Medical Review to immediately notify relevant law
54 enforcement authorities in the case of fraud;
55 requiring the office to complete a thorough
56 investigation of the application within a specified
57 time period in certain circumstances; requiring the
58 investigation to be conducted in a specified form;
59 requiring the chief medical officer to allow the
60 applicant and participating provider to access
61 records, statements, and other information in the
62 course of its investigation within a specified
63 timeframe; requiring a chief medical officer to
64 convene an independent medical review panel to make a
65 determination within a specified timeframe; requiring
66 that all information, including information that was
67 previously redacted, be given to the independent
68 medical review panel, and requiring the panel to make
69 a written determination within a specified period;
70 requiring the panel to dismiss an application under
71 certain circumstances; requiring a panel to report
72 that the application supports a claim for medical
73 injury if it determines by the preponderance of the
74 evidence that certain criteria are met; requiring the
75 Office of Medical Review to immediately notify the
76 participating provider by registered or certified mail
77 of the right to appeal the determination of the panel;
78 providing that a participating provider has a
79 specified timeframe within which to appeal the
80 determination of the panel; requiring the Office of
81 Compensation to make a written determination of an
82 award of compensation in certain circumstances;
83 requiring the Office of Compensation to notify the
84 applicant and participating provider by registered or
85 certified mail of the amount of compensation with an
86 explanation of the appeals process; providing that the
87 applicant has a specified time to appeal the award;
88 requiring compensation for an application to be offset
89 by any past and future collateral source payments;
90 requiring the insurer to remit the compensation award
91 to the Patient Compensation System, which must
92 immediately provide such compensation to the
93 applicant; requiring the payment of specified interest
94 on unpaid awards after a certain date; providing that
95 the findings under this act do not constitute a
96 finding of medical malpractice for purposes of s. 26,
97 Art. X of the State Constitution; requiring the
98 Patient Compensation System to provide the department
99 with electronic access to specified applications if
100 the Patient Compensation Trust Fund determines that
101 the provider presents an imminent risk of harm to the
102 public; requiring the department to review specified
103 applications; creating s. 766.407, F.S.; providing for
104 review of awards by an administrative law judge;
105 providing that a determination by an administrative
106 law judge is conclusive and binding and that a written
107 decision must be provided to the applicant and the
108 participating provider; authorizing an applicant to
109 appeal the award or denial of compensation to the
110 district court of appeal; requiring appeals to be
111 filed under specified rules of procedure; authorizing
112 an administrative law judge to grant an extension upon
113 a written petition by the applicant or the
114 participating provider; creating s. 766.408, F.S.;
115 requiring annual contributions from specified
116 providers to cover administrative expenses; providing
117 maximum contribution rates; specifying payment dates;
118 providing for disciplinary proceedings for failure to
119 pay; providing for the deposit of funds; authorizing
120 providers to opt out of participation; providing
121 requirements for such an election; creating s.
122 766.409, F.S.; requiring each participating provider
123 to provide notice to patients of the provider’s
124 participation in the Patient Compensation System;
125 creating s. 766.411, F.S.; requiring an annual report
126 to the Governor and the Legislature; providing for
127 retroactive applicability; providing an effective
128 date.
129
130 Be It Enacted by the Legislature of the State of Florida:
131
132 Section 1. Subsection (7) of section 456.013, Florida
133 Statutes, is amended to read:
134 456.013 Department; general licensing provisions.—
135 (7) The boards, or the department when there is no board,
136 shall require the completion of a 2-hour course relating to
137 prevention and communication of medical errors as part of the
138 licensure and renewal process. The 2-hour course counts toward
139 shall count towards the total number of continuing education
140 hours required for the profession. The course must shall be
141 approved by the board or department, as appropriate, and must
142 shall include a study of root-cause analysis, error reduction
143 and prevention, and patient safety, and communication of medical
144 errors to patients and their families. In addition, the course
145 approved by the Board of Medicine and the Board of Osteopathic
146 Medicine must shall include information relating to the five
147 most misdiagnosed conditions during the previous biennium, as
148 determined by the board. If the course is being offered by a
149 facility licensed pursuant to chapter 395 for its employees, the
150 board may approve up to 1 hour of the 2-hour course to be
151 specifically related to error reduction and prevention methods
152 used in that facility.
153 Section 2. The Division of Law Revision and Information is
154 directed to designate ss. 766.101-766.1185, Florida Statutes, as
155 part I of chapter 766, Florida Statutes, entitled “Medical
156 Malpractice and Related Matters”; ss. 766.201-766.212, Florida
157 Statutes, as part II of that chapter, entitled “Presuit
158 Investigation and Voluntary Binding Arbitration”; ss. 766.301
159 766.316, Florida Statutes, as part III of that chapter, entitled
160 “Birth-Related Neurological Injuries”; and ss. 766.401-766.412,
161 Florida Statutes, as created by this act, as part IV of that
162 chapter, entitled “Patient Compensation System.”
163 Section 3. Section 766.401, Florida Statutes, is created to
164 read:
165 766.401 Short title.—This part may be cited as the “Patient
166 Compensation System.”
167 Section 4. Section 766.402, Florida Statutes, is created to
168 read:
169 766.402 Definitions.—As used in this part, the term:
170 (1) “Applicant” means a person who files an application
171 under this part requesting the investigation of an alleged
172 occurrence of a medical injury.
173 (2) “Application” means a request for investigation by the
174 Patient Compensation System of an alleged occurrence of a
175 medical injury.
176 (3) “Board” means the Patient Compensation Board as created
177 in s. 766.404.
178 (4) “Collateral source” means a payment made to the
179 applicant, or made on his or her behalf, by or pursuant to:
180 (a) The federal Social Security Act; a federal, state, or
181 local income disability act; or any other public program
182 providing medical expenses, disability payments, or other
183 similar benefits, except as prohibited by federal law.
184 (b) A health, sickness, or income disability insurance; an
185 automobile accident insurance that provides health benefits or
186 income disability coverage; and any other similar insurance
187 benefits, except life insurance benefits available to the
188 applicant, whether purchased by the applicant or provided by
189 others.
190 (c) A contract or agreement of any group, organization,
191 partnership, or corporation to provide, pay for, or reimburse
192 the costs of hospital, medical, dental, or other health care
193 services.
194 (d) A contractual or voluntary wage continuation plan
195 provided by employers or by a system intended to provide wages
196 during a period of disability.
197 (5) “Committee” means, as the context requires, the medical
198 review committee or the compensation committee.
199 (6) “Compensation schedule” means a schedule of damages for
200 medical injuries.
201 (7) “Department” means the Department of Health.
202 (8) “Independent medical review panel” or “panel” means a
203 multidisciplinary panel convened by the chief medical officer
204 appointed under s. 766.404(2)(f) to review each application.
205 (9)(a) “Medical injury” means a personal injury or wrongful
206 death arising out of medical treatment, including a
207 misdiagnosis, which could have been avoided had the care been
208 provided by:
209 1. An individual participating provider, under the care of
210 an experienced specialist practicing in the same field of care
211 under the same or similar circumstances or, for a general
212 practitioner, an experienced general practitioner practicing
213 under the same or similar circumstances; or
214 2. A participating provider in a system of care, if the
215 care was rendered within an optimal system of care under the
216 same or similar circumstances.
217 (b) The term includes the failure to use an alternate
218 course of treatment only if the injury or death could have been
219 avoided through that alternate course of treatment, and that
220 alternate course of treatment is an equally or more effective
221 treatment for the underlying condition. In addition, a medical
222 injury determination must be based on the information that would
223 have been known to an experienced specialist or readily
224 available if an optimal system of care had been available at the
225 time of the medical treatment.
226 (c) For purposes of this subsection, the term does not
227 include an injury or wrongful death arising out of circumstances
228 in which the medical treatment conformed with national practice
229 standards for the care and treatment of patients as determined
230 by the independent medical review panel.
231 (d) The term shall be construed to encompass a broader
232 range of personal injuries than are encompassed by a negligence
233 standard, such that a greater number of applications qualify for
234 compensation under this part than claims filed under a
235 negligence standard.
236 (10) “Office” means the Office of Compensation, the Office
237 of Medical Review, or the Office of Quality Improvement.
238 (11) “Panelist” means a person who meets the definition of
239 a provider under this act.
240 (12) “Participating provider” means a provider that, at the
241 time of the medical injury, had paid the contribution required
242 for participation in the Patient Compensation System for the
243 year in which the medical injury occurred.
244 (13) “Patient Compensation System” means the organization
245 created in s. 766.404.
246 (14) “Provider” means:
247 (a) A birth center licensed under chapter 383;
248 (b) A facility licensed under chapter 390, chapter 395, or
249 chapter 400;
250 (c) A home health agency or nurse registry licensed under
251 part III of chapter 400;
252 (d) A health care services pool registered under part IX of
253 chapter 400;
254 (e) A person certified under s. 401.27;
255 (f) A person licensed under chapter 457, chapter 458,
256 chapter 459, chapter 460, chapter 461, chapter 462, chapter 463,
257 chapter 464, chapter 465, chapter 466, chapter 467, part I, part
258 II, part III, part IV, part V, part X, part XIII, or part XIV of
259 chapter 468, chapter 478, part III of chapter 483, or chapter
260 486;
261 (g) A clinical laboratory licensed under part I of chapter
262 483;
263 (h) A multiphasic health testing center licensed under part
264 II of chapter 483;
265 (i) A health maintenance organization authorized under part
266 I of chapter 641;
267 (j) A blood bank;
268 (k) A plasma center;
269 (l) An industrial clinic;
270 (m) A renal dialysis facility; or
271 (n) A professional association partnership, corporation,
272 joint venture, or other association pertaining to the
273 professional activity of health care providers.
274 Section 5. Section 766.403, Florida Statutes, is created to
275 read:
276 766.403 Legislative findings and intent; exclusive remedy;
277 early offers; wrongful death.—
278 (1) LEGISLATIVE FINDINGS.—The Legislature finds that:
279 (a) The lack of legal representation, and, thus,
280 compensation, for the majority of patients with legitimate
281 medical injuries is creating an access-to-courts crisis.
282 (b) Seeking compensation through medical malpractice
283 litigation is a costly and protracted process. Legal counsel may
284 be able to afford to finance only a small number of legitimate
285 claims.
286 (c) Even for injured patients who are able to obtain legal
287 representation, the delay in obtaining compensation averages 5
288 years, imposing a significant hardship on injured patients, who
289 often need access to immediate care and compensation, and their
290 caregivers.
291 (d) Because of continued exposure to liability, an
292 overwhelming majority of physicians practice defensive medicine
293 by ordering unnecessary tests and procedures, increasing the
294 cost of health care for individuals covered by public and
295 private health insurance and exposing patients to unnecessary
296 clinical risks.
297 (e) A significant number of physicians, particularly
298 obstetricians, intend to discontinue providing services in
299 Florida as a result of the cost and risk of medical liability in
300 this state.
301 (f) Recruiting physicians to practice in this state and
302 ensuring that current physicians continue to practice in this
303 state is a public necessity.
304 (2) LEGISLATIVE INTENT.—The Legislature intends:
305 (a) To avoid excessive medical malpractice litigation by
306 creating a new remedy through which patients are fairly and
307 expeditiously compensated for medical injuries. As provided in
308 this part, this alternative is intended to significantly reduce
309 the practice of defensive medicine, thereby reducing health care
310 costs; increase patient safety; increase the number of
311 physicians practicing in this state; and provide patients fair
312 and timely compensation without the expense and delay of the
313 court system. The Legislature intends that this part apply to
314 all health care facilities and health care providers who are
315 insured or self-insured against claims for medical malpractice.
316 (b) That an application filed under this part not
317 constitute a claim for medical malpractice, that any action on
318 such an application not constitute a judgment or adjudication
319 for medical malpractice, and, therefore, that professional
320 liability insurance companies and self-insured facilities and
321 providers not be obligated to report such applications, or
322 actions on such applications, to the National Practitioner Data
323 Bank.
324 (c) That, because the Patient Compensation System has the
325 primary duty to determine the validity and compensation of each
326 application, an insurer not be subject to a statutory or common
327 law bad faith cause of action relating to an application filed
328 under this part.
329 (3) EXCLUSIVE REMEDY.—Except as provided in part III, the
330 rights and remedies granted under this part exclude all other
331 rights and remedies of the applicant and his or her personal
332 representative, parents, dependents, and next of kin, at common
333 law or as provided in general law, against any participating
334 provider directly involved in providing the medical treatment
335 resulting in such injury or death, arising out of or related to
336 a medical negligence claim, whether in tort or in contract, with
337 respect to such injury. Notwithstanding any other law, this part
338 applies exclusively to applications submitted under this part.
339 (4) EARLY OFFER.—This part does not prohibit a self-insured
340 provider or an insurer from providing an early offer of
341 settlement or apology in satisfaction of a medical injury. A
342 person who accepts a settlement or apology offer may not then
343 file an application under this part for the same medical injury.
344 If an application is filed before an offer of settlement is
345 made, the acceptance of the settlement offer by the applicant
346 results in the withdrawal of the application.
347 (5) WRONGFUL DEATH.—Compensation may not be provided under
348 this part for an application requesting an investigation of an
349 alleged wrongful death arising out of medical treatment, if such
350 application is filed by an adult child on behalf of his or her
351 parent or by a parent on behalf of his or her adult child.
352 Section 6. Section 766.404, Florida Statutes, is created to
353 read:
354 766.404 Patient Compensation System; board; committees.—
355 (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation
356 System is created and administered within the department. The
357 Patient Compensation System is a separate budget entity that is
358 not subject to control, supervision, or direction by the
359 department. The Patient Compensation System administers this
360 part.
361 (2) PATIENT COMPENSATION BOARD.—The Patient Compensation
362 Board is a board of trustees as defined in s. 20.03(12) and is
363 established to govern the Patient Compensation System. The board
364 must comply with the requirements of s. 20.052, except as
365 provided in this subsection.
366 (a) Members.—The board consists of 11 members who represent
367 the medical, legal, patient, and business communities from
368 diverse geographic areas throughout the state. Members of the
369 board serve at the pleasure of the Governor and are appointed by
370 the Governor as follows:
371 1. Five members, one of whom must be an allopathic or
372 osteopathic physician, one of whom must be an executive in the
373 business community, one of whom must be a hospital
374 administrator, one of whom must be a certified public
375 accountant, and one of whom must be a member of The Florida Bar,
376 all of whom must actively practice or work in this state.
377 2. Three members selected from a list of persons
378 recommended by the President of the Senate who practice
379 allopathic or osteopathic medicine or who are patient advocates.
380 At least one member must be an allopathic or osteopathic
381 physician, and at least one member must be a patient advocate.
382 All three members must be in active practice or reside in this
383 state.
384 3. Three members selected from a list of persons
385 recommended by the Speaker of the House of Representatives who
386 practice allopathic or osteopathic medicine or who are patient
387 advocates. At least one member must be an allopathic or
388 osteopathic physician, and at least one member must be a patient
389 advocate. All three members must be in active practice or reside
390 in this state.
391 (b) Terms of appointment.—Members are appointed to 4-year
392 terms. For the purpose of providing staggered terms, of the
393 initial appointments, the five members appointed pursuant to
394 subparagraph 1. shall be appointed to 2-year terms, and the
395 remaining six members pursuant to subparagraphs 2. and 3. shall
396 be appointed to 3-year terms. If a vacancy occurs on the board
397 before the expiration of a term, the Governor shall appoint a
398 successor to serve the remainder of the term.
399 (c) Chair and vice chair.—The board shall annually elect
400 from its membership a chair of the board and a vice chair.
401 (d) Meetings.—The first meeting of the board must be held
402 no later than August 1, 2015. Thereafter, the board must meet at
403 least quarterly upon the call of the chair. A majority of the
404 board members constitutes a quorum. Meetings may be held by
405 teleconference, web conference, or other electronic means.
406 (e) Compensation.—Members of the board serve without
407 compensation but may be reimbursed for per diem and travel
408 expenses for required attendance at board meetings in accordance
409 with s. 112.061.
410 (f) Powers and duties of the board.—The board has the
411 following powers and duties:
412 1. Ensuring the operation of the Patient Compensation
413 System in accordance with applicable federal and state laws,
414 rules, and regulations.
415 2. Entering into contracts as necessary to administer this
416 part.
417 3. Employing an executive director and other staff as
418 necessary to perform the functions of the Patient Compensation
419 System, except that the Governor appoints the initial executive
420 director.
421 4. Approving the hiring of a chief compensation officer and
422 chief medical officer, as recommended by the executive director.
423 5. Approving a schedule of compensation for medical
424 injuries, as recommended by the compensation committee.
425 6. Approving medical review panelists as recommended by the
426 medical review committee.
427 7. Approving an annual budget.
428 8. Annually approving provider contribution amounts.
429 (g) Powers and duties of staff.—The executive director
430 shall oversee the operation of the Patient Compensation System
431 in accordance with this part. The following staff shall report
432 directly to and serve at the pleasure of the executive director:
433 1. Advocacy director.—The advocacy director shall ensure
434 that each applicant is provided high quality individual
435 assistance throughout the process, from initial filing to
436 disposition of the application. The advocacy director shall
437 assist each applicant in determining whether to retain an
438 attorney, which assistance shall include an explanation of
439 possible fee arrangements and the advantages and disadvantages
440 of retaining an attorney. If the applicant seeks to file an
441 application without an attorney, the advocacy director shall
442 assist the applicant in filing the application. In addition, the
443 advocacy director shall regularly provide status reports to the
444 applicant regarding his or her application.
445 2. Chief compensation officer.—The chief compensation
446 officer shall manage the Office of Compensation. The chief
447 compensation officer shall recommend to the compensation
448 committee a compensation schedule for each type of medical
449 injury. The chief compensation officer may not be a licensed
450 physician or an attorney.
451 3. Chief financial officer.—The chief financial officer is
452 responsible for overseeing the financial operations of the
453 Patient Compensation System, including the annual development of
454 a budget.
455 4. Chief legal officer.—The chief legal officer shall
456 represent the Patient Compensation System in all contested
457 applications, oversee the operation of the Patient Compensation
458 System to ensure compliance with established procedures, and
459 ensure adherence to all applicable federal and state laws,
460 rules, and regulations.
461 5. Chief medical officer.—The chief medical officer must be
462 a physician licensed under chapter 458 or chapter 459 and shall
463 manage the Office of Medical Review. The chief medical officer
464 shall recommend to the medical review committee a qualified list
465 of multidisciplinary panelists for independent medical review
466 panels. In addition, the chief medical officer shall convene
467 independent medical review panels as necessary to review
468 applications.
469 6. Chief quality officer.—The chief quality officer shall
470 manage the Office of Quality Improvement.
471 (3) OFFICES.—The following offices are established within
472 the Patient Compensation System:
473 (a) Office of Medical Review.—The Office of Medical Review
474 shall evaluate and, as necessary, investigate all applications
475 in accordance with this part. For the purpose of an
476 investigation of an application, the office has the power to
477 administer oaths, take depositions, issue subpoenas, compel the
478 attendance of witnesses and the production of papers, documents,
479 and other evidence, and obtain patient records if the patient
480 consents.
481 (b) Office of Compensation.—The Office of Compensation
482 shall allocate compensation for each application in accordance
483 with the compensation schedule adopted pursuant to subparagraph
484 (2)(f)5.
485 (c) Office of Quality Improvement.—The Office of Quality
486 Improvement shall regularly review application data to conduct
487 root cause analyses and develop and disseminate best practices
488 based on the reviews. In addition, the office shall capture and
489 record safety-related data obtained during an investigation
490 conducted by the Office of Medical Review, including the cause
491 of, the factors contributing to, and any interventions that may
492 have prevented the medical injury.
493 (4) COMMITTEES.—The board shall create a medical review
494 committee and a compensation committee. The board may create
495 additional committees as necessary to assist in the performance
496 of its duties and responsibilities.
497 (a) Members.—Each committee consists of three board members
498 chosen by a majority vote of the board.
499 1. The medical review committee is composed of two
500 physicians and a member who is not an attorney. The board
501 designates one of the physician members as chair of the
502 committee.
503 2. The compensation committee is composed of a certified
504 public accountant and two members who are not physicians or
505 attorneys. The certified public accountant serves as chair of
506 the committee.
507 (b) Terms of appointment.—Members of each committee are
508 appointed to 2-year terms concurrent with their respective terms
509 as board members. If a vacancy occurs on a committee, the board
510 shall appoint a successor to serve the remainder of the term. A
511 committee member who is removed or resigns from the board must
512 be removed from the committee.
513 (c) Chair and vice chair.—The board shall annually
514 designate a chair, pursuant to paragraph (a), and a vice chair
515 of each committee.
516 (d) Meetings.—Each committee must meet at least quarterly
517 and at the specific direction of the board. Meetings may be held
518 by teleconference, web conference, or other electronic means.
519 (e) Powers and duties.—
520 1. The medical review committee shall recommend to the
521 board a comprehensive, multidisciplinary list of panelists who
522 are eligible to serve on the independent medical review panels
523 as needed.
524 2. The compensation committee shall, in consultation with
525 the chief compensation officer, recommend to the board:
526 a. A compensation schedule, formulated such that the
527 aggregate cost of medical malpractice and the aggregate of
528 provider contributions are equal to or less than the prior
529 fiscal year’s aggregate cost of medical malpractice. Thereafter,
530 the committee shall annually review the compensation schedule
531 and, if necessary, recommend a revised schedule, such that a
532 projected increase in the upcoming fiscal year’s aggregate cost
533 of medical malpractice, including insured and self-insured
534 providers, does not exceed the percentage change from the prior
535 year in the medical care component of the Consumer Price Index
536 for All Urban Consumers published by the United States
537 Department of Labor.
538 b. Guidelines for the payment of compensation awards
539 through periodic payments.
540 c. Guidelines for the apportionment of compensation among
541 multiple providers, which guidelines shall be based on the
542 historical apportionment among multiple providers for similar
543 injuries with similar severity.
544 (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical
545 officer shall convene an independent medical review panel to
546 evaluate each application to determine whether a medical injury
547 occurred. Each panel shall be composed of an odd number of at
548 least three panelists chosen from a list of panelists
549 representing the same or similar specialty as the provider who
550 is the subject of the application. The panel shall convene,
551 either in person or by teleconference, upon the call of the
552 chief medical officer. Each panelist shall be paid a stipend as
553 determined by the board for his or her service on the panel. In
554 order to expedite the review of applications, the chief medical
555 officer may, whenever practicable, group related applications
556 together for consideration by a single panel.
557 (6) CONFLICTS OF INTEREST.—A board member, panelist, or
558 employee of the Patient Compensation System may not engage in
559 any conduct that constitutes a conflict of interest. For
560 purposes of this subsection, the term “conflict of interest”
561 means a situation in which the private interest of a board
562 member, panelist, or employee could influence his or her
563 judgment in the performance of his or her duties under this
564 part. A board member, panelist, or employee must immediately
565 disclose in writing the existence of a conflict of interest when
566 the board member, panelist, or employee knows or should
567 reasonably know that the factual circumstances surrounding a
568 particular application constitutes a conflict of interest. A
569 board member, panelist, or employee who violates this subsection
570 is subject to disciplinary action as determined by the board. A
571 conflict of interest includes, but is not limited to:
572 (a) Conduct that would lead a reasonable person having
573 knowledge of all of the circumstances to conclude that a board
574 member, panelist, or employee is biased against or in favor of
575 an applicant.
576 (b) Participation in an application in which the board
577 member, panelist, or employee, or the parent, spouse, or child
578 of a board member, panelist, or employee, has a financial
579 interest.
580 (7) RULEMAKING.—The board shall adopt rules to implement
581 and administer this part, including rules addressing:
582 (a) The application process, including forms necessary to
583 collect relevant information from applicants.
584 (b) Disciplinary procedures for a board member, panelist,
585 or employee who violates subsection (6).
586 (c) Stipends paid to panelists for their service on an
587 independent medical review panel, which stipends may be scaled
588 in accordance with the relative scarcity of the provider’s
589 specialty, if applicable.
590 (d) Payment of compensation awards through periodic
591 payments and the apportionment of compensation among multiple
592 providers, as recommended by the compensation committee.
593 (e) An opt-out process for providers who do not want to
594 participate in the Patient Compensation System.
595 Section 7. Section 766.405, Florida Statutes, is created to
596 read:
597 766.405 Filing of applications.—
598 (1) CONTENT.—In order to obtain compensation for a medical
599 injury, an applicant or his or her legal representative must
600 file an application with the Patient Compensation System. The
601 application must include the following:
602 (a) The name and address of the applicant or his or her
603 legal representative, and the authority under which the
604 representative is acting on behalf of the applicant.
605 (b) The name and address of any participating provider who
606 provided medical treatment that allegedly gave rise to the
607 medical injury.
608 (c) A brief statement of the facts and circumstances
609 surrounding the medical injury which gave rise to the
610 application.
611 (d) An authorization for release to the Office of Medical
612 Review of all protected health information that is potentially
613 relevant to the application.
614 (e) Any other information that the applicant believes will
615 be beneficial to the investigatory process, including the names
616 of potential witnesses.
617 (f) Documentation of any applicable private or governmental
618 source of services or reimbursement relative to the medical
619 injury.
620 (2) INCOMPLETE APPLICATIONS.—If an application is
621 incomplete, the Patient Compensation System shall notify the
622 applicant in writing, within 30 days after the receipt of the
623 initial application, of any errors or omissions. An applicant
624 has 30 days after receipt of the notice in which to correct the
625 errors or omissions in the initial application.
626 (3) TIME LIMITATION ON APPLICATIONS.—An application must be
627 filed within the time periods specified for medical malpractice
628 actions in s. 95.11(4)(b). The applicable time period is tolled
629 from the date of the filing of an application until the date of
630 the receipt by the applicant of the results of the initial
631 medical review under s. 766.406.
632 (4) SUPPLEMENTAL INFORMATION.—After the filing of an
633 application, the applicant may supplement the initial
634 application with additional information that the applicant
635 believes may be beneficial in the resolution of the application.
636 (5) LEGAL COUNSEL.—This part does not prohibit an applicant
637 or participating provider from retaining an attorney to
638 represent the applicant or participating provider in the review
639 and resolution of an application.
640 Section 8. Section 766.406, Florida Statutes, is created to
641 read:
642 766.406 Disposition of applications.—
643 (1) INITIAL MEDICAL REVIEW.—Individuals with relevant
644 clinical expertise in the Office of Medical Review shall, within
645 10 days after the receipt of a completed application, determine
646 whether the facts stated in the application give rise to a prima
647 facie claim for medical injury.
648 (a) If the Office of Medical Review determines that the
649 facts stated in the application give rise to a prima facie claim
650 for medical injury, the office shall immediately notify by
651 registered or certified mail each participating provider named
652 in the application and, for participating providers that are not
653 self-insured, the insurer that provides coverage to the
654 provider. The notification shall inform the participating
655 provider that he or she may support the application to expedite
656 the processing of the application. A participating provider has
657 15 days after the receipt of notification of an application to
658 support the application. If the participating provider supports
659 the application, the Office of Medical Review shall review the
660 application in accordance with subsection (2).
661 (b) If the Office of Medical Review determines that the
662 facts stated in the application do not give rise to a prima
663 facie claim for medical injury, the office shall send a
664 rejection letter to the applicant by registered or certified
665 mail informing the applicant of his or her right to appeal. The
666 applicant has 15 days after the receipt of the letter in which
667 to appeal the determination of the office pursuant to s.
668 766.407.
669 (2) EXPEDITED MEDICAL REVIEW.—An application that is
670 supported by a participating provider in accordance with
671 subsection (1) shall be reviewed by individuals with relevant
672 clinical expertise in the Office of Medical Review within 30
673 days after notification of the participating provider’s support
674 of the application to determine the validity of the application.
675 If the Office of Medical Review finds that the application is
676 valid, the Office of Compensation shall determine an award of
677 compensation in accordance with subsection (4). If the Office of
678 Medical Review finds that the application is not valid, the
679 office shall immediately notify the applicant of the rejection
680 of the application and, in the case of fraud, shall immediately
681 notify relevant law enforcement authorities.
682 (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review
683 determines that the facts stated in the application give rise to
684 a prima facie claim for medical injury and the participating
685 provider does not elect to support the application, the office
686 shall complete a thorough investigation of the application
687 within 60 days after the initial determination. The
688 investigation shall be conducted by a multidisciplinary team
689 with relevant clinical expertise and must include a thorough
690 investigation of all available documentation, witnesses, and
691 other information. Within 15 days after the completion of the
692 investigation, the chief medical officer shall allow the
693 applicant and the participating provider to access records,
694 statements, and other information obtained in the course of its
695 investigation, in accordance with relevant state and federal
696 laws.
697 (a) Within 30 days after the completion of the
698 investigation, the chief medical officer shall convene an
699 independent medical review panel to determine whether the facts
700 stated in the application give rise to a claim for medical
701 injury. The independent medical review panel must have access to
702 all information, including information that was previously
703 redacted, which was obtained by the office in the course of its
704 investigation of the application. The panel shall complete its
705 review and make a written determination within 10 days after
706 convening. The panel’s written determination shall be
707 immediately provided to the applicant and the participating
708 provider.
709 (b)1. If the panel determines that the medical intervention
710 conformed to national practice standards for the care and
711 treatment of patients, the application shall be dismissed and
712 the provider may not be held responsible for the patient’s
713 medical injury.
714 2. The panel shall report that the facts stated in the
715 application support the claim for medical injury if it
716 determines by a preponderance of the evidence that the following
717 criteria are met:
718 a. The provider performed a medical service on the
719 applicant;
720 b. The applicant suffered a personal injury or death;
721 c. The medical service was the proximate cause of the
722 personal injury or death; and
723 d. One or more of the following, as determined in
724 accordance with s. 766.402(9):
725 (I) An accepted method of medical services was not used for
726 treatment.
727 (II) An accepted method of medical services was used for
728 treatment, but was executed in a substandard fashion.
729 (III) An accepted method was used, but, the personal injury
730 or death could have been avoided by using a less invasive, but
731 equally or more effective, treatment.
732 (c) If the independent medical review panel determines that
733 the facts stated in the application support the claim for
734 medical injury, the Office of Medical Review shall immediately
735 notify the participating provider by registered or certified
736 mail of the right to appeal the determination of the panel. The
737 participating provider has 15 days after the receipt of the
738 letter in which to appeal the determination of the panel
739 pursuant to s. 766.407.
740 (d) If the independent medical review panel determines that
741 the facts stated in the application do not support the claim for
742 medical injury, the Office of Medical Review shall immediately
743 notify the applicant by registered or certified mail of his or
744 her right to appeal the determination of the panel. The
745 applicant has 15 days after the receipt of the letter to appeal
746 the determination of the panel pursuant to s. 766.407.
747 (4) COMPENSATION REVIEW.—If an independent medical review
748 panel finds that the facts stated in an application support the
749 claim for medical injury under subsection (3) and all appeals of
750 that finding have been exhausted by the participating provider
751 pursuant to s. 766.407, the Office of Compensation shall, within
752 30 days after the later of the finding of the panel or the
753 exhaustion of all appeals make a written determination of an
754 award of compensation in accordance with the compensation
755 schedule and the findings of the panel. The office shall notify
756 the applicant and the participating provider by registered or
757 certified mail of the amount of compensation and shall explain
758 to the applicant the process for appealing the award of
759 compensation. The applicant has 15 days after the date of
760 receipt of the letter to appeal the award as provided in s.
761 766.407.
762 (5) LIMITATION ON COMPENSATION.—Compensation for damages
763 must be offset by any past and future collateral source
764 payments. In addition, compensation may be paid by periodic
765 payments as determined by the Office of Compensation in
766 accordance with rules adopted by the board.
767 (6) PAYMENT OF COMPENSATION.—Within 14 days after the
768 acceptance of compensation by the applicant or the conclusion of
769 all appeals pursuant to s. 766.407, the participating provider
770 or, for a participating provider who has insurance coverage, the
771 insurer must remit the compensation award to the Patient
772 Compensation System, which must immediately provide compensation
773 to the applicant in accordance with the final compensation
774 award. Beginning the later of 45 days after the acceptance of
775 compensation by the applicant or the conclusion of all appeals
776 pursuant to s. 766.407, an unpaid award begins to accrue
777 interest at the rate of 18 percent per year.
778 (7) DETERMINATION OF MEDICAL MALPRACTICE.—The findings
779 issued under this part do not constitute a finding of medical
780 malpractice for purposes of s. 26, Art. X of the State
781 Constitution.
782 (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation
783 System shall provide the department with electronic access to
784 applications that lead to a determination that a medical injury
785 occurred when they involve health care providers licensed under
786 chapter 458, chapter 459, chapter 460, part I of chapter 464, or
787 chapter 466, if the Patient Compensation Trust Fund determines
788 that the provider presents an imminent risk of harm to the
789 public. The department shall review these applications to
790 determine whether any of the incidents that resulted in the
791 application potentially involve conduct by the licensee which is
792 subject to disciplinary action, in which case s. 456.073
793 applies.
794 Section 9. Section 766.407, Florida Statutes, is created to
795 read:
796 766.407 Review by administrative law judge; appellate
797 review; extensions of time.—
798 (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative
799 law judge shall hear and determine appeals filed pursuant to s.
800 766.406 and shall exercise the full power and authority granted
801 to him or her in chapter 120, as necessary, to carry out the
802 purposes of that section. The administrative law judge shall be
803 limited in his or her review to determining whether the Office
804 of Medical Review, the independent medical review panel, or the
805 Office of Compensation, as appropriate, has faithfully followed
806 the requirements of this part, and rules adopted thereunder, in
807 reviewing applications. If the administrative law judge
808 determines that the requirements were not followed in reviewing
809 an application, he or she shall require the chief medical
810 officer to reconvene the original panel or convene a new panel,
811 or require the Office of Compensation to redetermine the
812 compensation amount in accordance with the determination of the
813 judge.
814 (2) APPELLATE REVIEW.—A determination by an administrative
815 law judge under this section regarding the award or denial of
816 compensation under this part shall be conclusive and binding as
817 to all questions of fact and shall be provided to the applicant
818 and the participating provider. An applicant may appeal the
819 award or denial of compensation to the district court of appeal.
820 Appeals shall be filed in accordance with rules of procedure
821 adopted by the Supreme Court for review of such orders.
822 (3) EXTENSIONS OF TIME.—Upon a written petition by either
823 the applicant or the participating provider, an administrative
824 law judge may grant, for good cause, an extension of any of the
825 time periods specified in this part. The relevant time period is
826 tolled from the date of the written petition until the date of
827 the determination by the administrative law judge.
828 Section 10. Section 766.408, Florida Statutes, is created
829 to read:
830 766.408 Expenses of administration; opt out.—
831 (1) The board shall annually determine the required
832 contribution of each participating provider in the Patient
833 Compensation System. The required contribution amount shall be
834 determined by January 1 of each year based on the anticipated
835 expenses of the administration of this part for the next state
836 fiscal year.
837 (2) The required contribution rate may not exceed the
838 following amounts:
839 (a) For an individual with certification or recertification
840 under section 401.27, a chiropractic assistant licensed under
841 chapter 460, or, with the exception of health care providers
842 specified in paragraph (b), an individual licensed under chapter
843 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter
844 466, chapter 467, part I, part II, part III, part IV, part V,
845 part X, part XIII, or part XIV of chapter 468, chapter 478, part
846 III of chapter 483, or chapter 486, $100 per licensee.
847 (b) For an anesthesiology assistant or physician assistant
848 licensed under chapter 458 or chapter 459 or a certified
849 registered nurse anesthetist certified under part I of chapter
850 464, $250 per licensee.
851 (c) For a physician licensed under chapter 458, chapter
852 459, or chapter 460, $600 per licensee. The contribution for the
853 initial fiscal year shall be $500 per licensee.
854 (d) For a facility licensed under part II of chapter 400,
855 $100 per bed.
856 (e) For a facility licensed under chapter 395, $200 per
857 bed, except that the required contribution for the initial
858 fiscal year is $100 per bed.
859 (f) For any provider not otherwise described in this
860 subsection, $2,500 per registrant or licensee.
861 (3) The required contribution determined under this section
862 is payable by each participating provider within 30 days after
863 the date the notice of the required contribution is delivered to
864 the provider. If a participating provider fails to pay the
865 required contribution within 30 days after delivery of the
866 initial notice, the board shall notify the provider by certified
867 or registered mail that the provider’s license is subject to
868 revocation if the required contribution is not paid within 60
869 days after the date of the original notice.
870 (4) A provider who does not opt out of participation
871 pursuant to subsection (6) and who fails to pay the required
872 contribution amount determined under this section within 60 days
873 after receipt of the original notice shall be subject to a
874 licensure revocation action or discipline by the department, the
875 Agency for Health Care Administration, or the relevant
876 regulatory board, as applicable.
877 (5) All amounts collected under this section shall be paid
878 into the Patient Compensation Trust Fund established in s.
879 766.412.
880 (6) A provider may elect to opt out of participation in the
881 Patient Compensation System. The election to opt out must be
882 made in writing no later than 15 days before the due date of the
883 contribution required under this section. A provider who opts
884 out may subsequently elect to participate by paying the
885 appropriate contribution amount for the current fiscal year.
886 Section 11. Section 766.409, Florida Statutes, is created
887 to read:
888 766.409 Notice to patients of participation in the Patient
889 Compensation System.—
890 (1) Each participating provider must provide notice to
891 patients that the provider is participating in the Patient
892 Compensation System. The notice shall be provided on a form
893 furnished by the Patient Compensation System and shall include a
894 concise explanation of a patient’s rights and benefits under the
895 system.
896 (2) Notice is not required to be given to a patient when
897 the patient has an emergency medical condition, with respect to
898 a pregnant woman, as defined in s. 395.002(8)(b) or when notice
899 is not practicable.
900 Section 12. Section 766.411, Florida Statutes, is created
901 to read:
902 766.411 Annual report.—Beginning on October 1, 2017, the
903 board shall annually submit to the Governor, the President of
904 the Senate, and the Speaker of the House of Representatives a
905 report that describes the filing and disposition of applications
906 in the preceding fiscal year. The report shall include, in the
907 aggregate, the number of applications, the disposition of such
908 applications, and the compensation awarded.
909 Section 13. This act applies to medical incidents for which
910 a notice of intent to initiate litigation has not been mailed
911 before July 1, 2016.
912 Section 14. This act shall take effect July 1, 2016.
