Bill Text: FL S1590 | 2011 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Medical Malpractice
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2011-05-03 - Read 3rd time -SJ 726 [S1590 Detail]
Download: Florida-2011-S1590-Introduced.html
Bill Title: Medical Malpractice
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2011-05-03 - Read 3rd time -SJ 726 [S1590 Detail]
Download: Florida-2011-S1590-Introduced.html
Florida Senate - 2011 SB 1590
By Senator Hays
20-01006-11 20111590__
1 A bill to be entitled
2 An act relating to medical malpractice actions;
3 creating ss. 458.3175 and 459.0066, F.S.; requiring
4 the Board of Medicine and the Board of Osteopathic
5 Medicine to issue expert witness certificates to
6 physicians licensed outside the state; providing
7 application and certification requirements;
8 establishing application fees; providing for validity
9 and use of the certification; exempting a physician
10 issued a certificate from certain licensure and fee
11 requirements; requiring the boards to adopt rules;
12 amending ss. 458.331 and 459.015, F.S.; providing
13 additional acts that constitute grounds for denial of
14 a license or disciplinary action to which penalties
15 apply; amending s. 627.4147, F.S.; deleting a
16 requirement that medical malpractice insurance
17 contracts contain a clause authorizing the insurer to
18 make and conclude certain offers within policy limits
19 over the insured’s veto; amending s. 766.102, F.S.;
20 revising the length of devoted, professional time
21 required in order for a health care provider to
22 qualify to give expert testimony regarding the
23 prevailing professional standard of care; requiring an
24 expert witness in certain medical negligence actions
25 to be licensed under ch. 458 or ch. 459, F.S., or
26 possess an expert witness certificate under certain
27 conditions; providing that certain medical expert
28 testimony is not admissible unless the expert witness
29 meets certain requirements; amending s. 766.106, F.S.;
30 requiring claimants for medical malpractice to execute
31 an authorization form; deleting a provision
32 prohibiting failure to provide certain presuit notice
33 from serving as grounds for imposing sanctions;
34 providing that certain immunity arising from
35 participation in the presuit screening process does
36 not prohibit certain physicians from being subject to
37 certain penalties; allowing prospective medical
38 malpractice defendants to interview a claimant’s
39 treating health care providers without notice to or
40 the presence of the claimant or the claimant’s legal
41 representative; authorizing prospective defendants to
42 take unsworn statements of a claimant’s health care
43 providers; creating s. 766.1065, F.S.; requiring that
44 presuit notice for medical negligence claims be
45 accompanied by an authorization for release of
46 protected health information; providing requirements
47 for the form of such authorization; amending s.
48 766.206, F.S.; requiring dismissal of a medical
49 malpractice claim and payment of certain costs if such
50 authorization form is not completed in good faith;
51 providing an effective date.
52
53 Be It Enacted by the Legislature of the State of Florida:
54
55 Section 1. Section 458.3175, Florida Statutes, is created
56 to read:
57 458.3175 Expert witness certificate.—
58 (1)(a) The board shall issue a certificate authorizing a
59 physician who holds an active and valid license to practice
60 medicine in another state or a province of Canada to provide
61 expert testimony in this state if the physician submits to the
62 board a complete registration application in the format
63 prescribed by the board, pays an application fee established by
64 the board not to exceed $50, and has not had a previous expert
65 witness certificate revoked by the board.
66 (b) The board shall approve or deny an application for an
67 expert witness certificate within 5 business days after receipt
68 of the completed application and payment of the application fee.
69 An application is approved by default if the board does not act
70 upon the application within the required period. A physician
71 must notify the board in writing of his or her intent to rely on
72 a certificate approved by default.
73 (c) An expert witness certificate is valid for 2 years
74 after the date of issuance.
75 (2) An expert witness certificate authorizes the physician
76 to whom the certificate is issued to do only the following:
77 (a) Provide a verified written medical expert opinion as
78 provided in s. 766.203.
79 (b) Provide expert testimony about the prevailing
80 professional standard of care in connection with medical
81 negligence litigation pending in this state against a physician
82 licensed under this chapter or chapter 459.
83 (3) An expert witness certificate does not authorize a
84 physician to engage in the practice of medicine as defined in s.
85 458.305. A physician issued a certificate under this section who
86 does not otherwise practice medicine in this state is not
87 required to obtain a license under this chapter or pay any
88 license fees, including, but not limited to, a neurological
89 injury compensation assessment.
90 (4) The board shall adopt rules to administer this section.
91 Section 2. Present paragraphs (oo), (pp), and (qq) of
92 subsection (1) of section 458.331, Florida Statutes, are
93 redesignated as paragraphs (pp), (qq), and (rr), respectively,
94 and a new paragraph (oo) is added to that subsection, to read:
95 458.331 Grounds for disciplinary action; action by the
96 board and department.—
97 (1) The following acts constitute grounds for denial of a
98 license or disciplinary action, as specified in s. 456.072(2):
99 (oo) Providing misleading, deceptive, or fraudulent expert
100 witness testimony related to the practice of medicine.
101 Section 3. Section 459.0066, Florida Statutes, is created
102 to read:
103 459.0066 Expert witness certificate.—
104 (1)(a) The board shall issue a certificate authorizing a
105 physician who holds an active and valid license to practice
106 osteopathic medicine in another state or a province of Canada to
107 provide expert testimony in this state if the physician submits
108 to the board a complete registration application in the format
109 prescribed by the board, pays an application fee established by
110 the board not to exceed $50, and has not had a previous expert
111 witness certificate revoked by the board.
112 (b) The board shall approve or deny an application for an
113 expert witness certificate within 5 business days after receipt
114 of the completed application and payment of the application fee.
115 An application is approved by default if the board does not act
116 upon the application within the required period. A physician
117 must notify the board in writing of his or her intent to rely on
118 a certificate approved by default.
119 (c) An expert witness certificate is valid for 2 years
120 after the date of issuance.
121 (2) An expert witness certificate authorizes the physician
122 to whom the certificate is issued to do only the following:
123 (a) Provide a verified written medical expert opinion as
124 provided in s. 766.203.
125 (b) Provide expert testimony about the prevailing
126 professional standard of care in connection with medical
127 negligence litigation pending in this state against a physician
128 licensed under chapter 458 or this chapter.
129 (3) An expert witness certificate does not authorize a
130 physician to engage in the practice of osteopathic medicine as
131 defined in s. 459.003. A physician issued a certificate under
132 this section who does not otherwise practice osteopathic
133 medicine in this state is not required to obtain a license under
134 this chapter or pay any license fees, including, but not limited
135 to, a neurological injury compensation assessment.
136 (4) The board shall adopt rules to administer this section.
137 Section 4. Present paragraphs (qq), (rr), and (ss) of
138 subsection (1) of section 459.015, Florida Statutes, are
139 redesignated as paragraphs (rr), (ss), and (tt), respectively,
140 and a new paragraph (qq) is added to that subsection, to read:
141 459.015 Grounds for disciplinary action; action by the
142 board and department.—
143 (1) The following acts constitute grounds for denial of a
144 license or disciplinary action, as specified in s. 456.072(2):
145 (qq) Providing misleading, deceptive, or fraudulent expert
146 witness testimony related to the practice of osteopathic
147 medicine.
148 Section 5. Paragraph (b) of subsection (1) of section
149 627.4147, Florida Statutes, is amended to read:
150 627.4147 Medical malpractice insurance contracts.—
151 (1) In addition to any other requirements imposed by law,
152 each self-insurance policy as authorized under s. 627.357 or s.
153 624.462 or insurance policy providing coverage for claims
154 arising out of the rendering of, or the failure to render,
155 medical care or services, including those of the Florida Medical
156 Malpractice Joint Underwriting Association, shall include:
157 (b)1. Except as provided in subparagraph 2., a clause
158 authorizing the insurer or self-insurer to determine, to make,
159 and to conclude, without the permission of the insured, any
160 offer of admission of liability and for arbitration pursuant to
161 s. 766.106, settlement offer, or offer of judgment, if the offer
162 is within the policy limits. It is against public policy for any
163 insurance or self-insurance policy to contain a clause giving
164 the insured the exclusive right to veto any offer for admission
165 of liability and for arbitration made pursuant to s. 766.106,
166 settlement offer, or offer of judgment, when such offer is
167 within the policy limits. However, any offer of admission of
168 liability, settlement offer, or offer of judgment made by an
169 insurer or self-insurer shall be made in good faith and in the
170 best interests of the insured.
171 2.a. With respect to dentists licensed under chapter 466, A
172 clause clearly stating whether or not the insured has the
173 exclusive right to veto any offer of admission of liability and
174 for arbitration pursuant to s. 766.106, settlement offer, or
175 offer of judgment if the offer is within policy limits. An
176 insurer or self-insurer may shall not make or conclude, without
177 the permission of the insured, any offer of admission of
178 liability and for arbitration pursuant to s. 766.106, settlement
179 offer, or offer of judgment, if such offer is outside the policy
180 limits. However, any offer for admission of liability and for
181 arbitration made under s. 766.106, settlement offer, or offer of
182 judgment made by an insurer or self-insurer shall be made in
183 good faith and in the best interest of the insured.
184 2.b. If the policy contains a clause stating the insured
185 does not have the exclusive right to veto any offer or admission
186 of liability and for arbitration made pursuant to s. 766.106,
187 settlement offer or offer of judgment, the insurer or self
188 insurer shall provide to the insured or the insured’s legal
189 representative by certified mail, return receipt requested, a
190 copy of the final offer of admission of liability and for
191 arbitration made pursuant to s. 766.106, settlement offer or
192 offer of judgment and at the same time such offer is provided to
193 the claimant. A copy of any final agreement reached between the
194 insurer and claimant shall also be provided to the insurer or
195 his or her legal representative by certified mail, return
196 receipt requested not more than 10 days after affecting such
197 agreement.
198 Section 6. Section 766.102, Florida Statutes, is amended to
199 read:
200 766.102 Medical negligence; standards of recovery; expert
201 witness.—
202 (1) In any action for recovery of damages based on the
203 death or personal injury of any person in which it is alleged
204 that such death or injury resulted from the negligence of a
205 health care provider as defined in s. 766.202(4), the claimant
206 shall have the burden of proving by the greater weight of
207 evidence that the alleged actions of the health care provider
208 represented a breach of the prevailing professional standard of
209 care for that health care provider. The prevailing professional
210 standard of care for a given health care provider shall be that
211 level of care, skill, and treatment which, in light of all
212 relevant surrounding circumstances, is recognized as acceptable
213 and appropriate by reasonably prudent similar health care
214 providers.
215 (2)(a) If the injury is claimed to have resulted from the
216 negligent affirmative medical intervention of the health care
217 provider, the claimant must, in order to prove a breach of the
218 prevailing professional standard of care, show that the injury
219 was not within the necessary or reasonably foreseeable results
220 of the surgical, medicinal, or diagnostic procedure constituting
221 the medical intervention, if the intervention from which the
222 injury is alleged to have resulted was carried out in accordance
223 with the prevailing professional standard of care by a
224 reasonably prudent similar health care provider.
225 (b) The provisions of this subsection shall apply only when
226 the medical intervention was undertaken with the informed
227 consent of the patient in compliance with the provisions of s.
228 766.103.
229 (3) The existence of a medical injury shall not create any
230 inference or presumption of negligence against a health care
231 provider, and the claimant must maintain the burden of proving
232 that an injury was proximately caused by a breach of the
233 prevailing professional standard of care by the health care
234 provider. However, the discovery of the presence of a foreign
235 body, such as a sponge, clamp, forceps, surgical needle, or
236 other paraphernalia commonly used in surgical, examination, or
237 diagnostic procedures, shall be prima facie evidence of
238 negligence on the part of the health care provider.
239 (4) The Legislature is cognizant of the changing trends and
240 techniques for the delivery of health care in this state and the
241 discretion that is inherent in the diagnosis, care, and
242 treatment of patients by different health care providers. The
243 failure of a health care provider to order, perform, or
244 administer supplemental diagnostic tests shall not be actionable
245 if the health care provider acted in good faith and with due
246 regard for the prevailing professional standard of care.
247 (5) A person may not give expert testimony concerning the
248 prevailing professional standard of care unless that person is a
249 licensed health care provider and meets the following criteria:
250 (a) If the health care provider against whom or on whose
251 behalf the testimony is offered is a specialist, the expert
252 witness must:
253 1. Specialize in the same specialty as the health care
254 provider against whom or on whose behalf the testimony is
255 offered; or specialize in a similar specialty that includes the
256 evaluation, diagnosis, or treatment of the medical condition
257 that is the subject of the claim and have prior experience
258 treating similar patients; and
259 2. Have devoted professional time during the 2 3 years
260 immediately preceding the date of the occurrence that is the
261 basis for the action to:
262 a. The active clinical practice of, or consulting with
263 respect to, the same or similar specialty that includes the
264 evaluation, diagnosis, or treatment of the medical condition
265 that is the subject of the claim and have prior experience
266 treating similar patients;
267 b. Instruction of students in an accredited health
268 professional school or accredited residency or clinical research
269 program in the same or similar specialty; or
270 c. A clinical research program that is affiliated with an
271 accredited health professional school or accredited residency or
272 clinical research program in the same or similar specialty.
273 (b) If the health care provider against whom or on whose
274 behalf the testimony is offered is a general practitioner, the
275 expert witness must have devoted professional time during the 2
276 5 years immediately preceding the date of the occurrence that is
277 the basis for the action to:
278 1. The active clinical practice or consultation as a
279 general practitioner;
280 2. The instruction of students in an accredited health
281 professional school or accredited residency program in the
282 general practice of medicine; or
283 3. A clinical research program that is affiliated with an
284 accredited medical school or teaching hospital and that is in
285 the general practice of medicine.
286 (c) If the health care provider against whom or on whose
287 behalf the testimony is offered is a health care provider other
288 than a specialist or a general practitioner, the expert witness
289 must have devoted professional time during the 2 3 years
290 immediately preceding the date of the occurrence that is the
291 basis for the action to:
292 1. The active clinical practice of, or consulting with
293 respect to, the same or similar health profession as the health
294 care provider against whom or on whose behalf the testimony is
295 offered;
296 2. The instruction of students in an accredited health
297 professional school or accredited residency program in the same
298 or similar health profession in which the health care provider
299 against whom or on whose behalf the testimony is offered; or
300 3. A clinical research program that is affiliated with an
301 accredited medical school or teaching hospital and that is in
302 the same or similar health profession as the health care
303 provider against whom or on whose behalf the testimony is
304 offered.
305 (6) A physician licensed under chapter 458 or chapter 459
306 who qualifies as an expert witness under subsection (5) and who,
307 by reason of active clinical practice or instruction of
308 students, has knowledge of the applicable standard of care for
309 nurses, nurse practitioners, certified registered nurse
310 anesthetists, certified registered nurse midwives, physician
311 assistants, or other medical support staff may give expert
312 testimony in a medical negligence action with respect to the
313 standard of care of such medical support staff.
314 (7) Notwithstanding subsection (5), in a medical negligence
315 action against a hospital, a health care facility, or medical
316 facility, a person may give expert testimony on the appropriate
317 standard of care as to administrative and other nonclinical
318 issues if the person has substantial knowledge, by virtue of his
319 or her training and experience, concerning the standard of care
320 among hospitals, health care facilities, or medical facilities
321 of the same type as the hospital, health care facility, or
322 medical facility whose acts or omissions are the subject of the
323 testimony and which are located in the same or similar
324 communities at the time of the alleged act giving rise to the
325 cause of action.
326 (8) If a health care provider described in subsection (5),
327 subsection (6), or subsection (7) is providing evaluation,
328 treatment, or diagnosis for a condition that is not within his
329 or her specialty, a specialist trained in the evaluation,
330 treatment, or diagnosis for that condition shall be considered a
331 similar health care provider.
332 (9)(a) In any action for damages involving a claim of
333 negligence against a physician licensed under chapter 458,
334 osteopathic physician licensed under chapter 459, podiatric
335 physician licensed under chapter 461, or chiropractic physician
336 licensed under chapter 460 providing emergency medical services
337 in a hospital emergency department, the court shall admit expert
338 medical testimony only from physicians, osteopathic physicians,
339 podiatric physicians, and chiropractic physicians who have had
340 substantial professional experience within the preceding 2 5
341 years while assigned to provide emergency medical services in a
342 hospital emergency department.
343 (b) For the purposes of this subsection:
344 1. The term “emergency medical services” means those
345 medical services required for the immediate diagnosis and
346 treatment of medical conditions which, if not immediately
347 diagnosed and treated, could lead to serious physical or mental
348 disability or death.
349 2. “Substantial professional experience” shall be
350 determined by the custom and practice of the manner in which
351 emergency medical coverage is provided in hospital emergency
352 departments in the same or similar localities where the alleged
353 negligence occurred.
354 (10) In any action alleging medical negligence, an expert
355 witness may not testify on a contingency fee basis.
356 (11) Any attorney who proffers a person as an expert
357 witness pursuant to this section must certify that such person
358 has not been found guilty of fraud or perjury in any
359 jurisdiction.
360 (12) If the party against whom or on whose behalf the
361 expert testimony concerning the prevailing professional standard
362 of care is offered is a physician licensed under chapter 458 or
363 chapter 459, the expert witness must be licensed in this state
364 under chapter 458 or chapter 459 or possess an expert witness
365 certificate as provided in s. 458.3175 or s. 459.0066. Expert
366 testimony is not admissible unless the expert providing such
367 testimony is licensed by this state or possesses an expert
368 witness certificate as provided in s. 458.3175 or s. 459.0066.
369 (13)(12) This section does not limit the power of the trial
370 court to disqualify or qualify an expert witness on grounds
371 other than the qualifications in this section.
372 Section 7. Paragraph (a) of subsection (2), subsection
373 (5), and paragraph (b) of subsection (6) of section 766.106,
374 Florida Statutes, are amended to read:
375 766.106 Notice before filing action for medical negligence;
376 presuit screening period; offers for admission of liability and
377 for arbitration; informal discovery; review.—
378 (2) PRESUIT NOTICE.—
379 (a) After completion of presuit investigation pursuant to
380 s. 766.203(2) and prior to filing a complaint for medical
381 negligence, a claimant shall notify each prospective defendant
382 by certified mail, return receipt requested, of intent to
383 initiate litigation for medical negligence. Notice to each
384 prospective defendant must include, if available, a list of all
385 known health care providers seen by the claimant for the
386 injuries complained of subsequent to the alleged act of
387 negligence, all known health care providers during the 2-year
388 period prior to the alleged act of negligence who treated or
389 evaluated the claimant, and copies of all of the medical records
390 relied upon by the expert in signing the affidavit, and the
391 executed authorization form provided in s. 766.1065. The
392 requirement of providing the list of known health care providers
393 may not serve as grounds for imposing sanctions for failure to
394 provide presuit discovery.
395 (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
396 discussion, written document, report, or other work product
397 generated by the presuit screening process is not discoverable
398 or admissible in any civil action for any purpose by the
399 opposing party. All participants, including, but not limited to,
400 physicians, investigators, witnesses, and employees or
401 associates of the defendant, are immune from civil liability
402 arising from participation in the presuit screening process.
403 This subsection does not prevent a physician licensed under
404 chapter 458 or chapter 459 who submits a verified written expert
405 medical opinion from being subject to denial of a license or
406 disciplinary action under s. 458.331(1)(oo) or s.
407 459.015(1)(qq).
408 (6) INFORMAL DISCOVERY.—
409 (b) Informal discovery may be used by a party to obtain
410 unsworn statements, the production of documents or things, and
411 physical and mental examinations, as follows:
412 1. Unsworn statements.—Any party may require other parties
413 to appear for the taking of an unsworn statement. Such
414 statements may be used only for the purpose of presuit screening
415 and are not discoverable or admissible in any civil action for
416 any purpose by any party. A party desiring to take the unsworn
417 statement of any party must give reasonable notice in writing to
418 all parties. The notice must state the time and place for taking
419 the statement and the name and address of the party to be
420 examined. Unless otherwise impractical, the examination of any
421 party must be done at the same time by all other parties. Any
422 party may be represented by counsel at the taking of an unsworn
423 statement. An unsworn statement may be recorded electronically,
424 stenographically, or on videotape. The taking of unsworn
425 statements is subject to the provisions of the Florida Rules of
426 Civil Procedure and may be terminated for abuses.
427 2. Documents or things.—Any party may request discovery of
428 documents or things. The documents or things must be produced,
429 at the expense of the requesting party, within 20 days after the
430 date of receipt of the request. A party is required to produce
431 discoverable documents or things within that party’s possession
432 or control. Medical records shall be produced as provided in s.
433 766.204.
434 3. Physical and mental examinations.—A prospective
435 defendant may require an injured claimant to appear for
436 examination by an appropriate health care provider. The
437 prospective defendant shall give reasonable notice in writing to
438 all parties as to the time and place for examination. Unless
439 otherwise impractical, a claimant is required to submit to only
440 one examination on behalf of all potential defendants. The
441 practicality of a single examination must be determined by the
442 nature of the claimant’s condition, as it relates to the
443 liability of each prospective defendant. Such examination report
444 is available to the parties and their attorneys upon payment of
445 the reasonable cost of reproduction and may be used only for the
446 purpose of presuit screening. Otherwise, such examination report
447 is confidential and exempt from the provisions of s. 119.07(1)
448 and s. 24(a), Art. I of the State Constitution.
449 4. Written questions.—Any party may request answers to
450 written questions, the number of which may not exceed 30,
451 including subparts. A response must be made within 20 days after
452 receipt of the questions.
453 5. Ex parte interviews of treating health care providers.—A
454 prospective defendant or his or her legal representative shall
455 have access to interview the claimant’s treating health care
456 providers without notice to or the presence of the claimant or
457 the claimant’s legal representative.
458 6.5. Unsworn statements of treating health care providers
459 Medical information release.—The claimant must execute a medical
460 information release that allows A prospective defendant or his
461 or her legal representative may to take unsworn statements of
462 the claimant’s treating health care providers physicians. The
463 statements must be limited to those areas that are potentially
464 relevant to the claim of personal injury or wrongful death.
465 Subject to the procedural requirements of subparagraph 1., a
466 prospective defendant may take unsworn statements from a
467 claimant’s treating physicians. Reasonable notice and
468 opportunity to be heard must be given to the claimant or the
469 claimant’s legal representative before taking unsworn
470 statements. The claimant or claimant’s legal representative has
471 the right to attend the taking of such unsworn statements.
472 Section 8. Section 766.1065, Florida Statutes, is created
473 to read:
474 766.1065 Authorization form for release of protected health
475 information.—
476 (1) Presuit notice of intent to initiate litigation for
477 medical negligence under s. 766.106(2) must be accompanied by an
478 authorization for release of protected health information in the
479 form specified by this section, authorizing the disclosure of
480 protected health information that is potentially relevant to the
481 claim of personal injury or wrongful death. The presuit notice
482 is void if this authorization does not accompany the presuit
483 notice and other materials required by s. 766.106(2).
484 (2) If the authorization required by this section is
485 revoked, the presuit notice under s. 766.106(2) shall be deemed
486 retroactively void from the date of issuance, and any tolling
487 effect that the presuit notice may have had on any applicable
488 statute-of-limitations period is retroactively rendered void.
489 (3) The authorization required by this section shall be in
490 the following form and shall be construed in accordance with the
491 “Standards for Privacy of Individually Identifiable Health
492 Information” in 45 C.F.R. parts 160 and 164:
493
494 AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
495
496 A. I,_(...Name of patient or authorized
497 representative...) [hereinafter “Patient”], authorize
498 that (...Name of health care provider to whom the
499 presuit notice is directed...) and his/her/its
500 insurer(s), self-insurer(s), and attorney(s) may
501 obtain and disclose (within the parameters set out
502 below) the protected health information described
503 below for the following specific purposes:
504 1. Facilitating the investigation and evaluation
505 of the medical negligence claim described in the
506 accompanying presuit notice; or
507 2. Defending against any litigation arising out
508 of the medical negligence claim made on the basis of
509 the accompanying presuit notice.
510 B. The health information obtained, used, or
511 disclosed extends to, and includes, oral as well as
512 the written information, and is described as follows:
513 1. The health information in the custody of the
514 following health care providers who have examined,
515 evaluated, or treated the Patient in connection with
516 injuries complained of after the alleged act of
517 negligence: (List the name and current address of all
518 health care providers). This authorization extends to
519 any additional health care providers that may in the
520 future evaluate, examine, or treat the Patient for the
521 injuries complained of.
522 2. The health information in the custody of the
523 following health care providers who have examined,
524 evaluated, or treated the Patient during a period
525 commencing 2 years before the incident which is the
526 basis of the accompanying presuit notice.
527
528 (List the name and current address of such health care
529 providers, if applicable.)
530
531 C. This authorization does not apply to the
532 following list of health care providers possessing
533 health care information about the Patient because the
534 Patient certifies that such health care information is
535 not potentially relevant to the claim of personal
536 injury or wrongful death which is the basis of the
537 accompanying presuit notice.
538
539 (List the name of each health care provider to whom
540 this authorization does not apply and the inclusive
541 dates of examination, evaluation, or treatment to be
542 withheld from disclosure. If none, specify “none.”)
543
544 D. The persons or class of persons to whom the
545 Patient authorizes such health information to be
546 disclosed, or by whom such health information is to be
547 used, includes:
548 1. Any health care provider providing care or
549 treatment for the Patient.
550 2. Any liability insurer or self-insurer
551 providing liability insurance coverage, self
552 insurance, or defense to any health care provider to
553 whom presuit notice is given regarding the care and
554 treatment of the Patient.
555 3. Any consulting or testifying expert employed
556 by or on behalf of (name of health care provider to
557 whom presuit notice was given) or his/her/its
558 insurer(s), self-insurer(s), or attorney(s) regarding
559 the matter of the presuit notice accompanying this
560 authorization.
561 4. Any attorney (including secretarial, clerical,
562 or paralegal staff) employed by or on behalf of (name
563 of health care provider to whom presuit notice was
564 given) regarding the matter of the presuit notice
565 accompanying this authorization.
566 5. Any trier of the law or facts relating to any
567 suit filed seeking damages arising out of the medical
568 care or treatment of the Patient.
569 E. This authorization expires upon resolution of
570 the claim or at the conclusion of any litigation
571 instituted in connection with the matter of the
572 presuit notice accompanying this authorization,
573 whichever occurs first.
574 F. The Patient understands that, without
575 exception, the Patient has the right to revoke this
576 authorization in writing. The Patient further
577 understands that the consequence of any such
578 revocation is that the presuit notice under s.
579 766.106(2), Florida Statutes, is deemed retroactively
580 void from the date of issuance, and any tolling effect
581 that the presuit notice may have had on any applicable
582 statute-of-limitations period is retroactively
583 rendered void.
584 G. The Patient understands that signing this
585 authorization is not a condition for continued
586 treatment, payment, enrollment, or eligibility for
587 health plan benefits.
588 H. The Patient understands that information used
589 or disclosed under this authorization may be subject
590 to additional disclosure by the recipient and may not
591 be protected by federal HIPAA privacy regulations.
592
593 Signature of Patient/Representative: ....
594 Date: ....
595 Name of Patient/Representative: ....
596 Description of Representative’s Authority: ....
597 Section 9. Subsection (2) of section 766.206, Florida
598 Statutes, is amended to read:
599 766.206 Presuit investigation of medical negligence claims
600 and defenses by court.—
601 (2) If the court finds that the notice of intent to
602 initiate litigation mailed by the claimant does is not comply in
603 compliance with the reasonable investigation requirements of ss.
604 766.201-766.212, including a review of the claim and a verified
605 written medical expert opinion by an expert witness as defined
606 in s. 766.202, or that the authorization form accompanying the
607 notice of intent provided for in s. 766.1065 was not completed
608 in good faith by the claimant, the court shall dismiss the
609 claim, and the person who mailed such notice of intent, whether
610 the claimant or the claimant’s attorney, shall be personally
611 liable for all attorney’s fees and costs incurred during the
612 investigation and evaluation of the claim, including the
613 reasonable attorney’s fees and costs of the defendant or the
614 defendant’s insurer.
615 Section 10. This act shall take effect July 1, 2011.
