Bill Text: FL S1506 | 2012 | Regular Session | Introduced

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

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Bill Title: Health Care

Spectrum: Bipartisan Bill

Status: (Failed) 2012-03-09 - Died in Budget Subcommittee on Health and Human Services Appropriations [S1506 Detail]

Download: Florida-2012-S1506-Introduced.html

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       Florida Senate - 2012                                    SB 1506
       
       
       
       By Senator Thrasher
       
       
       
       
       8-01390-12                                            20121506__
    1                        A bill to be entitled                      
    2         An act relating to medical malpractice; providing
    3         legislative findings and intent; amending s. 766.102,
    4         F.S.; providing that the claimant has the burden of
    5         proving by clear and convincing evidence that the
    6         actions of a health care provider represented a breach
    7         of the prevailing professional standard of care in an
    8         action for damages based on death or personal injury
    9         which alleges that the death or injury resulted from
   10         the failure of a health care provider to order,
   11         perform, or administer supplemental diagnostic tests;
   12         amending s. 766.106, F.S.; authorizing a prospective
   13         defendant to obtain informal discovery by conducting
   14         ex parte interviews of treating health care providers;
   15         requiring advance notice to the claimant of an ex
   16         parte interview; amending s. 768.28, F.S.; redefining
   17         the term “officer, employee, or agent” to include an
   18         emergency health care provider; providing that an
   19         emergency health care provider is an agent of the
   20         state; requiring an emergency health care provider to
   21         indemnify the state for any judgments, settlement
   22         costs, or other liabilities; imposing a penalty
   23         against an emergency health care provider who fails to
   24         indemnify the state; requiring that the Department of
   25         Health issue an emergency order suspending the license
   26         of any licensee under the department’s jurisdiction
   27         who fails to indemnify the state or enter into a
   28         repayment agreement; providing for disciplinary action
   29         for licensees in the Division of Medical Quality
   30         Assurance of the department; providing an effective
   31         date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Legislative findings and intent.—
   36         (1) The Legislature finds and declares it to be of vital
   37  importance that emergency services and care be provided by
   38  hospitals, physicians, and providers of emergency medical
   39  services to every person in need of such services and care. The
   40  Legislature also finds that providers of emergency services are
   41  a critical element in responding to natural disasters and
   42  emergency situations that may affect local communities, the
   43  state, and the country. The Legislature recognizes the
   44  importance of maintaining a viable system of providing for the
   45  emergency medical needs of the state’s residents and visitors.
   46  The Legislature and the Federal Government have required
   47  providers of emergency medical services to provide emergency
   48  services and care to all persons who present themselves to
   49  hospitals seeking such care. As used in this section, the term
   50  "emergency medical services” means all screenings, examinations,
   51  and evaluations by a physician, hospital, or other person or
   52  entity acting pursuant to obligations imposed by s. 395.1041 or
   53  s. 401.45, Florida Statutes, and the care, treatment, surgery,
   54  or other medical services provided to relieve or eliminate the
   55  emergency medical condition, including all medical services to
   56  eliminate the likelihood that the emergency medical condition
   57  will deteriorate or recur without further medical attention
   58  within a reasonable period of time.
   59         (2) The Legislature has further mandated that emergency
   60  medical treatment may not be denied by providers of emergency
   61  medical services to persons who have or are likely to have an
   62  emergency medical condition. This mandate imposes a unilateral
   63  obligation on providers of emergency medical services to provide
   64  services to all persons seeking emergency care without guarantee
   65  of payment or other consideration for provision of such care.
   66  The Legislature also recognizes that providers of emergency
   67  medical services provide a significant amount of uncompensated
   68  emergency medical care in furtherance of this governmental
   69  interest.
   70         (3) The Legislature further finds that:
   71         (a) A significant proportion of the residents of this state
   72  who are uninsured or receive Medicaid or Medicare assistance are
   73  unable to access needed health care on an elective basis because
   74  health care providers fear the increased risk of medical
   75  malpractice liability. The Legislature finds that, in order to
   76  obtain medical care, these patients frequently are forced to
   77  seek care through providers of emergency medical services.
   78         (b) Providers of emergency medical services in this state
   79  have reported significant problems regarding the affordability
   80  of professional liability insurance. The cost of professional
   81  liability insurance in this state is more expensive than the
   82  national average. The Legislature further finds that a
   83  significant number of physicians who hold a board certification
   84  in a specialty have resigned from serving on hospital staffs or
   85  have otherwise declined to provide on-call coverage to hospital
   86  emergency departments due to the increased exposure to medical
   87  malpractice liability created by treating patients admitted into
   88  an emergency department of a medical facility, thereby creating
   89  a void that has an adverse effect on emergency patient care.
   90         (4) It is the intent of the Legislature that hospitals,
   91  providers of emergency medical services, and physicians ensure
   92  that patients who need emergency medical treatment and who
   93  present themselves to hospitals for emergency medical services
   94  and care have access to these needed services.
   95         Section 2. Subsection (4) of section 766.102, Florida
   96  Statutes, is amended to read:
   97         766.102 Medical negligence; standards of recovery; expert
   98  witness.—
   99         (4)(a) The Legislature is cognizant of the changing trends
  100  and techniques for the delivery of health care in this state and
  101  the discretion that is inherent in the diagnosis, care, and
  102  treatment of patients by different health care providers. The
  103  failure of a health care provider to order, perform, or
  104  administer supplemental diagnostic tests is shall not be
  105  actionable if the health care provider acted in good faith and
  106  with due regard for the prevailing professional standard of
  107  care.
  108         (b) The claimant has the burden of proving by clear and
  109  convincing evidence that the alleged actions of the health care
  110  provider represent a breach of the prevailing professional
  111  standard of care in an action for damages based on death or
  112  personal injury which alleges that the death or injury resulted
  113  from the failure of a health care provider to order, perform, or
  114  administer supplemental diagnostic tests.
  115         Section 3. Paragraph (b) of subsection (6) of section
  116  766.106, Florida Statutes, is amended to read:
  117         766.106 Notice before filing action for medical negligence;
  118  presuit screening period; offers for admission of liability and
  119  for arbitration; informal discovery; review.—
  120         (6) INFORMAL DISCOVERY.—
  121         (b) Informal discovery may be used by a party to obtain
  122  unsworn statements, the production of documents or things, and
  123  physical and mental examinations, and ex parte interviews, as
  124  follows:
  125         1. Unsworn statements.—Any party may require other parties
  126  to appear for the taking of an unsworn statement. Such
  127  statements may be used only for the purpose of presuit screening
  128  and are not discoverable or admissible in any civil action for
  129  any purpose by any party. A party desiring to take the unsworn
  130  statement of any party must give reasonable notice in writing to
  131  all parties. The notice must state the time and place for taking
  132  the statement and the name and address of the party to be
  133  examined. Unless otherwise impractical, the examination of any
  134  party must be done at the same time by all other parties. Any
  135  party may be represented by counsel at the taking of an unsworn
  136  statement. An unsworn statement may be recorded electronically,
  137  stenographically, or on videotape. The taking of unsworn
  138  statements is subject to the provisions of the Florida Rules of
  139  Civil Procedure and may be terminated for abuses.
  140         2. Documents or things.—Any party may request discovery of
  141  documents or things. The documents or things must be produced,
  142  at the expense of the requesting party, within 20 days after the
  143  date of receipt of the request. A party is required to produce
  144  discoverable documents or things within that party’s possession
  145  or control. Medical records shall be produced as provided in s.
  146  766.204.
  147         3. Physical and mental examinations.—A prospective
  148  defendant may require an injured claimant to appear for
  149  examination by an appropriate health care provider. The
  150  prospective defendant shall give reasonable notice in writing to
  151  all parties as to the time and place for examination. Unless
  152  otherwise impractical, a claimant is required to submit to only
  153  one examination on behalf of all potential defendants. The
  154  practicality of a single examination must be determined by the
  155  nature of the claimant’s condition, as it relates to the
  156  liability of each prospective defendant. Such examination report
  157  is available to the parties and their attorneys upon payment of
  158  the reasonable cost of reproduction and may be used only for the
  159  purpose of presuit screening. Otherwise, such examination report
  160  is confidential and exempt from the provisions of s. 119.07(1)
  161  and s. 24(a), Art. I of the State Constitution.
  162         4. Written questions.—Any party may request answers to
  163  written questions, the number of which may not exceed 30,
  164  including subparts. A response must be made within 20 days after
  165  receipt of the questions.
  166         5. Unsworn statements of treating health care providers.—A
  167  prospective defendant or his or her legal representative may
  168  also take unsworn statements of the claimant’s treating health
  169  care providers. The statements must be limited to those areas
  170  that are potentially relevant to the claim of personal injury or
  171  wrongful death. Subject to the procedural requirements of
  172  subparagraph 1., a prospective defendant may take unsworn
  173  statements from a claimant’s treating physicians. Reasonable
  174  notice and opportunity to be heard must be given to the claimant
  175  or the claimant’s legal representative before taking unsworn
  176  statements. The claimant or claimant’s legal representative has
  177  the right to attend the taking of such unsworn statements.
  178         6. Ex parte interviews of treating health care providers.—A
  179  prospective defendant or his or her legal representative may
  180  interview the claimant’s treating health care providers without
  181  the presence of the claimant or the claimant’s legal
  182  representative. If a prospective defendant or his or her legal
  183  representative intends to interview a claimant’s health care
  184  providers, the prospective defendant must provide the claimant
  185  with notice of such interview at least 10 days before the date
  186  of the interview.
  187         Section 4. Subsection (9) of section 768.28, Florida
  188  Statutes, is amended to read:
  189         768.28 Waiver of sovereign immunity in tort actions;
  190  recovery limits; limitation on attorney fees; statute of
  191  limitations; exclusions; indemnification; risk management
  192  programs.—
  193         (9)(a) No officer, employee, or agent of the state or of
  194  any of its subdivisions shall be held personally liable in tort
  195  or named as a party defendant in any action for any injury or
  196  damage suffered as a result of any act, event, or omission of
  197  action in the scope of her or his employment or function, unless
  198  such officer, employee, or agent acted in bad faith or with
  199  malicious purpose or in a manner exhibiting wanton and willful
  200  disregard of human rights, safety, or property. However, such
  201  officer, employee, or agent shall be considered an adverse
  202  witness in a tort action for any injury or damage suffered as a
  203  result of any act, event, or omission of action in the scope of
  204  her or his employment or function. The exclusive remedy for
  205  injury or damage suffered as a result of an act, event, or
  206  omission of an officer, employee, or agent of the state or any
  207  of its subdivisions or constitutional officers shall be by
  208  action against the governmental entity, or the head of such
  209  entity in her or his official capacity, or the constitutional
  210  officer of which the officer, employee, or agent is an employee,
  211  unless such act or omission was committed in bad faith or with
  212  malicious purpose or in a manner exhibiting wanton and willful
  213  disregard of human rights, safety, or property. The state or its
  214  subdivisions are shall not be liable in tort for the acts or
  215  omissions of an officer, employee, or agent committed while
  216  acting outside the course and scope of her or his employment or
  217  committed in bad faith or with malicious purpose or in a manner
  218  exhibiting wanton and willful disregard of human rights, safety,
  219  or property.
  220         (b) As used in this subsection, the term:
  221         1. “Employee” includes any volunteer firefighter.
  222         2. “Officer, employee, or agent” includes, but is not
  223  limited to:,
  224         a. Any health care provider when providing services
  225  pursuant to s. 766.1115; any member of the Florida Health
  226  Services Corps, as defined in s. 381.0302, who provides
  227  uncompensated care to medically indigent persons referred by the
  228  Department of Health; any nonprofit independent college or
  229  university located and chartered in this state which owns or
  230  operates an accredited medical school, and its employees or
  231  agents, when providing patient services pursuant to paragraph
  232  (10)(f); and any public defender or her or his employee or
  233  agent, including, among others, an assistant public defender and
  234  an investigator.
  235         b. Any emergency health care provider acting pursuant to
  236  obligations imposed by s. 395.1041 or s. 401.45, except for a
  237  person or entity that is otherwise covered under this section,
  238  unless the emergency health care provider waives the agency
  239  status granted in this section.
  240         (c)1. An emergency health care provider is an agent of the
  241  state and shall indemnify the state for any judgments,
  242  settlement costs, or other liabilities incurred, up to the
  243  liability limits in subsection (5). As used in this paragraph,
  244  the term “emergency health care provider” means a physician
  245  licensed under chapter 458 or chapter 459.
  246         2. Any emergency health care provider who is licensed in
  247  this state who fails to indemnify the state after reasonable
  248  notice and written demand to do so is subject to an emergency
  249  suspension order of the regulating authority having jurisdiction
  250  over the licensee.
  251         3. The Department of Health shall issue an emergency order
  252  suspending the license of any licensee under its jurisdiction or
  253  any licensee of a regulatory board within the Department of
  254  Health who fails to comply within 30 days after receipt by the
  255  department of a notice from the Division of Risk Management of
  256  the Department of Financial Services that the licensee has
  257  failed to satisfy his or her obligation to indemnify the state
  258  or enter into a repayment agreement for costs under this
  259  subsection. The terms of such agreement must provide assurance
  260  of repayment of the obligation which is satisfactory to the
  261  state. For licensees within the Division of Medical Quality
  262  Assurance of the Department of Health, failure to comply with
  263  this paragraph constitutes grounds for disciplinary action under
  264  each respective practice act and under s. 456.072(1)(k).
  265         (d)(c) For purposes of the waiver of sovereign immunity
  266  only, a member of the Florida National Guard is not acting
  267  within the scope of state employment when performing duty under
  268  the provisions of Title 10 or Title 32 of the United States Code
  269  or other applicable federal law; and neither the state nor any
  270  individual may be named in any action under this chapter arising
  271  from the performance of such federal duty.
  272         (e)(d) The employing agency of a law enforcement officer as
  273  defined in s. 943.10 is not liable for injury, death, or
  274  property damage effected or caused by a person fleeing from a
  275  law enforcement officer in a motor vehicle if:
  276         1. The pursuit is conducted in a manner that does not
  277  involve conduct by the officer which is so reckless or wanting
  278  in care as to constitute disregard of human life, human rights,
  279  safety, or the property of another;
  280         2. At the time the law enforcement officer initiates the
  281  pursuit, the officer reasonably believes that the person fleeing
  282  has committed a forcible felony as defined in s. 776.08; and
  283         3. The pursuit is conducted by the officer pursuant to a
  284  written policy governing high-speed pursuit adopted by the
  285  employing agency. The policy must contain specific procedures
  286  concerning the proper method to initiate and terminate high
  287  speed pursuit. The law enforcement officer must have received
  288  instructional training from the employing agency on the written
  289  policy governing high-speed pursuit.
  290         Section 5. This act shall take effect July 1, 2012.