Bill Text: FL S1590 | 2011 | Regular Session | Comm Sub
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-Comm_Sub.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-Comm_Sub.html
Florida Senate - 2011 CS for SB 1590 By the Committee on Banking and Insurance; and Senators Hays and Gaetz 597-04391-11 20111590c1 1 A bill to be entitled 2 An act relating to medical malpractice; creating ss. 3 458.3175, 459.0066, and 466.005, F.S.; requiring the 4 Department of Health to issue expert witness 5 certificates to certain physicians and dentists 6 licensed outside the state; providing application and 7 certification requirements; establishing application 8 fees; providing for the validity and use of 9 certifications; exempting physicians and dentists 10 issued certifications from certain licensure and fee 11 requirements; amending ss. 458.331, 459.015, and 12 466.028, F.S.; providing additional acts that 13 constitute grounds for denial of a license or 14 disciplinary action to which penalties apply; 15 providing construction with respect to the doctrine of 16 incorporation by reference; amending ss. 458.351 and 17 459.026, F.S.; requiring the Board of Medicine and the 18 Board of Osteopathic Medicine to adopt within a 19 specified period certain patient forms specifying 20 cataract surgery risks; specifying that an incident 21 resulting from risks disclosed in the patient form is 22 not an adverse incident; providing for the execution 23 and admissibility of the patient forms in civil and 24 administrative proceedings; creating a rebuttable 25 presumption that a physician disclosed cataract 26 surgery risks if the patient form is executed; 27 amending s. 627.4147, F.S.; deleting a requirement 28 that medical malpractice insurance contracts contain a 29 clause authorizing the insurer to make and conclude 30 certain offers within policy limits over the insured’s 31 veto; amending s. 766.102, F.S.; defining terms; 32 providing that certain insurance information is not 33 admissible as evidence in medical negligence actions; 34 establishing the burden of proof that a claimant must 35 meet in certain damage claims against health care 36 providers based on death or personal injury; requiring 37 that certain expert witnesses who provide certain 38 expert testimony meet certain licensure or 39 certification requirements; excluding a health care 40 provider’s failure to comply with or breach of federal 41 requirements from evidence in medical negligence cases 42 in the state; amending s. 766.106, F.S.; requiring 43 claimants for medical malpractice to execute an 44 authorization form; allowing prospective medical 45 malpractice defendants to interview a claimant’s 46 treating health care provider without notice to or the 47 presence of the claimant or the claimant’s legal 48 representative; authorizing prospective defendants to 49 take unsworn statements of a claimant’s health care 50 provider; creating s. 766.1065, F.S.; requiring that 51 presuit notice for medical negligence claims be 52 accompanied by an authorization for release of 53 protected health information; providing requirements 54 for the form of such authorization; amending s. 55 766.206, F.S.; requiring dismissal of a medical 56 malpractice claim if such authorization is not 57 completed in good faith; amending s. 768.0981, F.S.; 58 limiting the liability of hospitals related to certain 59 medical negligence claims; providing an effective 60 date. 61 62 Be It Enacted by the Legislature of the State of Florida: 63 64 Section 1. Section 458.3175, Florida Statutes, is created 65 to read: 66 458.3175 Expert witness certificate.— 67 (1)(a) The department shall issue a certificate authorizing 68 a physician who holds an active and valid license to practice 69 medicine in another state or a province of Canada to provide 70 expert testimony in this state, if the physician submits to the 71 department: 72 1. A complete registration application containing the 73 physician’s legal name, mailing address, telephone number, 74 business locations, the names of the jurisdictions where the 75 physician holds an active and valid license to practice 76 medicine, and the license number or other identifying number 77 issued to the physician by the jurisdiction’s licensing entity; 78 and 79 2. An application fee of $50. 80 (b) The department shall approve an application for an 81 expert witness certificate within 7 business days after receipt 82 of the completed application and payment of the application fee 83 if the applicant holds an active and valid license to practice 84 medicine in another state or a province of Canada and has not 85 had a previous expert witness certificate revoked by the board. 86 An application is approved by default if the department does not 87 act upon the application within the required period. A physician 88 must notify the department in writing of his or her intent to 89 rely on a certificate approved by default. 90 (c) An expert witness certificate is valid for 2 years 91 after the date of issuance. 92 (2) An expert witness certificate authorizes the physician 93 to whom the certificate is issued to do only the following: 94 (a) Provide a verified written medical expert opinion as 95 provided in s. 766.203. 96 (b) Provide expert testimony about the prevailing 97 professional standard of care in connection with medical 98 negligence litigation pending in this state against a physician 99 licensed under this chapter or chapter 459. 100 (3) An expert witness certificate does not authorize a 101 physician to engage in the practice of medicine as defined in s. 102 458.305. A physician issued a certificate under this section who 103 does not otherwise practice medicine in this state is not 104 required to obtain a license under this chapter or pay any 105 license fees, including, but not limited to, a neurological 106 injury compensation assessment. An expert witness certificate 107 shall be treated as a license in any disciplinary action, and 108 the holder of an expert witness certificate shall be subject to 109 discipline by the board. 110 Section 2. Subsection (11) is added to section 458.331, 111 Florida Statutes, paragraphs (oo) through (qq) of subsection (1) 112 of that section are redesignated as paragraphs (pp) through 113 (rr), respectively, and a new paragraph (oo) is added to that 114 subsection, to read: 115 458.331 Grounds for disciplinary action; action by the 116 board and department.— 117 (1) The following acts constitute grounds for denial of a 118 license or disciplinary action, as specified in s. 456.072(2): 119 (oo) Providing misleading, deceptive, or fraudulent expert 120 witness testimony related to the practice of medicine. 121 (11) The purpose of this section is to facilitate uniform 122 discipline for those acts made punishable under this section 123 and, to this end, a reference to this section constitutes a 124 general reference under the doctrine of incorporation by 125 reference. 126 Section 3. Subsection (6) of section 458.351, Florida 127 Statutes, is renumbered as subsection (7), and a new subsection 128 (6) is added to that section to read: 129 458.351 Reports of adverse incidents in office practice 130 settings.— 131 (6)(a) The board shall adopt rules establishing a standard 132 informed consent form that sets forth the recognized specific 133 risks related to cataract surgery. The board must propose such 134 rules within 90 days after the effective date of this 135 subsection. 136 (b) Before formally proposing the rule, the board must 137 consider information from physicians licensed under this chapter 138 or chapter 459 regarding recognized specific risks related to 139 cataract surgery and the standard informed consent forms adopted 140 for use in the medical field by other states. 141 (c) A patient’s informed consent is not executed until the 142 patient, or a person authorized by the patient to give consent, 143 and a competent witness sign the form adopted by the board. 144 (d) An incident resulting from recognized specific risks 145 described in the signed consent form is not considered an 146 adverse incident for purposes of s. 395.0197 and this section. 147 (e) In a civil action or administrative proceeding against 148 a physician based on his or her alleged failure to properly 149 disclose the risks of cataract surgery, a patient’s informed 150 consent executed as provided in paragraph (c) on the form 151 adopted by the board is admissible as evidence and creates a 152 rebuttable presumption that the physician properly disclosed the 153 risks. 154 Section 4. Section 459.0066, Florida Statutes, is created 155 to read: 156 459.0066 Expert witness certificate.— 157 (1)(a) The department shall issue a certificate authorizing 158 a physician who holds an active and valid license to practice 159 osteopathic medicine in another state or a province of Canada to 160 provide expert testimony in this state, if the physician submits 161 to the department: 162 1. A complete registration application containing the 163 physician’s legal name, mailing address, telephone number, 164 business locations, the names of the jurisdictions where the 165 physician holds an active and valid license to practice 166 osteopathic medicine, and the license number or other 167 identifying number issued to the physician by the jurisdiction’s 168 licensing entity; and 169 2. An application fee of $50. 170 (b) The department shall approve an application for an 171 expert witness certificate within 7 business days after receipt 172 of the completed application and payment of the application fee 173 if the applicant holds an active and valid license to practice 174 osteopathic medicine in another state or a province of Canada 175 and has not had a previous expert witness certificate revoked by 176 the board. An application is approved by default if the 177 department does not act upon the application within the required 178 period. A physician must notify the department in writing of his 179 or her intent to rely on a certificate approved by default. 180 (c) An expert witness certificate is valid for 2 years 181 after the date of issuance. 182 (2) An expert witness certificate authorizes the physician 183 to whom the certificate is issued to do only the following: 184 (a) Provide a verified written medical expert opinion as 185 provided in s. 766.203. 186 (b) Provide expert testimony about the prevailing 187 professional standard of care in connection with medical 188 negligence litigation pending in this state against a physician 189 licensed under chapter 458 or this chapter. 190 (3) An expert witness certificate does not authorize a 191 physician to engage in the practice of osteopathic medicine as 192 defined in s. 459.003. A physician issued a certificate under 193 this section who does not otherwise practice osteopathic 194 medicine in this state is not required to obtain a license under 195 this chapter or pay any license fees, including, but not limited 196 to, a neurological injury compensation assessment. An expert 197 witness certificate shall be treated as a license in any 198 disciplinary action, and the holder of an expert witness 199 certificate shall be subject to discipline by the board. 200 Section 5. Subsection (11) is added to section 459.015, 201 Florida Statutes, paragraphs (qq) through (ss) of subsection (1) 202 of that section are redesignated as paragraphs (rr) through 203 (tt), respectively, and a new paragraph (qq) is added to that 204 subsection, to read: 205 459.015 Grounds for disciplinary action; action by the 206 board and department.— 207 (1) The following acts constitute grounds for denial of a 208 license or disciplinary action, as specified in s. 456.072(2): 209 (qq) Providing misleading, deceptive, or fraudulent expert 210 witness testimony related to the practice of osteopathic 211 medicine. 212 (11) The purpose of this section is to facilitate uniform 213 discipline for those acts made punishable under this section 214 and, to this end, a reference to this section constitutes a 215 general reference under the doctrine of incorporation by 216 reference. 217 Section 6. Section 466.005, Florida Statutes, is created to 218 read: 219 466.005 Expert witness certificate.— 220 (1)(a) The department shall issue a certificate authorizing 221 a dentist who holds an active and valid license to practice 222 dentistry in another state or a province of Canada to provide 223 expert testimony in this state, if the dentist submits to the 224 department: 225 1. A complete registration application containing the 226 dentist’s legal name, mailing address, telephone number, 227 business locations, the names of the jurisdictions where the 228 dentist holds an active and valid license to practice dentistry, 229 and the license number or other identifying number issued to the 230 dentist by the jurisdiction’s licensing entity; and 231 2. An application fee of $50. 232 (b) The department shall approve an application for an 233 expert witness certificate within 7 business days after receipt 234 of the completed application and payment of the application fee 235 if the applicant holds an active and valid license to practice 236 dentistry in another state or a province of Canada and has not 237 had a previous expert witness certificate revoked by the board. 238 An application is approved by default if the department does not 239 act upon the application within the required period. A dentist 240 must notify the department in writing of his or her intent to 241 rely on a certificate approved by default. 242 (c) An expert witness certificate is valid for 2 years 243 after the date of issuance. 244 (2) An expert witness certificate authorizes the dentist to 245 whom the certificate is issued to do only the following: 246 (a) Provide a verified written medical expert opinion as 247 provided in s. 766.203. 248 (b) Provide expert testimony about the prevailing 249 professional standard of care in connection with medical 250 negligence litigation pending in this state against a dentist 251 licensed under this chapter. 252 (3) An expert witness certificate does not authorize a 253 dentist to engage in the practice of dentistry as defined in s. 254 466.003. A dentist issued a certificate under this section who 255 does not otherwise practice dentistry in this state is not 256 required to obtain a license under this chapter or pay any 257 license fees. An expert witness certificate shall be treated as 258 a license in any disciplinary action, and the holder of an 259 expert witness certificate shall be subject to discipline by the 260 board. 261 Section 7. Subsection (8) is added to section 466.028, 262 Florida Statutes, paragraph (ll) of subsection (1) of that 263 section is redesignated as paragraph (mm), and a new paragraph 264 (ll) is added to that subsection, to read: 265 466.028 Grounds for disciplinary action; action by the 266 board.— 267 (1) The following acts constitute grounds for denial of a 268 license or disciplinary action, as specified in s. 456.072(2): 269 (ll) Providing misleading, deceptive, or fraudulent expert 270 witness testimony related to the practice of dentistry. 271 (8) The purpose of this section is to facilitate uniform 272 discipline for those acts made punishable under this section 273 and, to this end, a reference to this section constitutes a 274 general reference under the doctrine of incorporation by 275 reference. 276 Section 8. Subsection (6) of section 459.026, Florida 277 Statutes, is renumbered as subsection (7), and a new subsection 278 (6) is added to that section to read: 279 459.026 Reports of adverse incidents in office practice 280 settings.— 281 (6)(a) The board shall adopt rules establishing a standard 282 informed consent form that sets forth the recognized specific 283 risks related to cataract surgery. The board must propose such 284 rules within 90 days after the effective date of this 285 subsection. 286 (b) Before formally proposing the rule, the board must 287 consider information from physicians licensed under chapter 458 288 or this chapter regarding recognized specific risks related to 289 cataract surgery and the standard informed consent forms adopted 290 for use in the medical field by other states. 291 (c) A patient’s informed consent is not executed until the 292 patient, or a person authorized by the patient to give consent, 293 and a competent witness sign the form adopted by the board. 294 (d) An incident resulting from recognized specific risks 295 described in the signed consent form is not considered an 296 adverse incident for purposes of s. 395.0197 and this section. 297 (e) In a civil action or administrative proceeding against 298 a physician based on his or her alleged failure to properly 299 disclose the risks of cataract surgery, a patient’s informed 300 consent executed as provided in paragraph (c) on the form 301 adopted by the board is admissible as evidence and creates a 302 rebuttable presumption that the physician properly disclosed the 303 risks. 304 Section 9. Paragraph (b) of subsection (1) of section 305 627.4147, Florida Statutes, is amended to read: 306 627.4147 Medical malpractice insurance contracts.— 307 (1) In addition to any other requirements imposed by law, 308 each self-insurance policy as authorized under s. 627.357 or s. 309 624.462 or insurance policy providing coverage for claims 310 arising out of the rendering of, or the failure to render, 311 medical care or services, including those of the Florida Medical 312 Malpractice Joint Underwriting Association, shall include: 313 (b)1.Except as provided in subparagraph 2., a clause314authorizing the insurer or self-insurer to determine, to make,315and to conclude, without the permission of the insured, any316offer of admission of liability and for arbitration pursuant to317s.766.106, settlement offer, or offer of judgment, if the offer318is within the policy limits. It is against public policy for any319insurance or self-insurance policy to contain a clause giving320the insured the exclusive right to veto any offer for admission321of liability and for arbitration made pursuant to s.766.106,322settlement offer, or offer of judgment, when such offer is323within the policy limits. However, any offer of admission of324liability, settlement offer, or offer of judgment made by an325insurer or self-insurer shall be made in good faith and in the326best interests of the insured.3272.a. With respect to dentists licensed under chapter 466,A 328 clause clearly stating whether or not the insured has the 329 exclusive right to veto any offer of admission of liability and 330 for arbitration pursuant to s. 766.106, settlement offer, or 331 offer of judgment if the offer is within policy limits. An 332 insurer or self-insurer shall not make or conclude, without the 333 permission of the insured, any offer of admission of liability 334 and for arbitration pursuant to s. 766.106, settlement offer, or 335 offer of judgment, if such offer is outside the policy limits. 336 However, any offer for admission of liability and for 337 arbitration made under s. 766.106, settlement offer, or offer of 338 judgment made by an insurer or self-insurer shall be made in 339 good faith and in the best interest of the insured. 340 2.b.If the policy contains a clause stating the insured 341 does not have the exclusive right to veto any offer or admission 342 of liability and for arbitration made pursuant to s. 766.106, 343 settlement offer or offer of judgment, the insurer or self 344 insurer shall provide to the insured or the insured’s legal 345 representative by certified mail, return receipt requested, a 346 copy of the final offer of admission of liability and for 347 arbitration made pursuant to s. 766.106, settlement offer or 348 offer of judgment and at the same time such offer is provided to 349 the claimant. A copy of any final agreement reached between the 350 insurer and claimant shall also be provided to the insurer or 351 his or her legal representative by certified mail, return 352 receipt requested not more than 10 days after affecting such 353 agreement. 354 Section 10. Subsections (3), (4), and (5) of section 355 766.102, Florida Statutes, are amended, subsection (12) of that 356 section is renumbered as subsection (14), and new subsections 357 (12) and (13) are added to that section, to read: 358 766.102 Medical negligence; standards of recovery; expert 359 witness.— 360 (3)(a) As used in this subsection, the term: 361 1. “Insurer” means any public or private insurer, including 362 the Centers for Medicare and Medicaid Services. 363 2. “Reimbursement determination” means an insurer’s 364 determination of the amount that the insurer will reimburse a 365 health care provider for health care services. 366 3. “Reimbursement policies” means an insurer’s policies and 367 procedures governing its decisions regarding health insurance 368 coverage and method of payment and the data upon which such 369 policies and procedures are based, including, but not limited 370 to, data from national research groups and other patient safety 371 data as defined in s. 766.1016. 372 (b) The existence of a medical injury doesshallnot create 373 any inference or presumption of negligence against a health care 374 provider, and the claimant must maintain the burden of proving 375 that an injury was proximately caused by a breach of the 376 prevailing professional standard of care by the health care 377 provider. Any records, policies, or testimony of an insurer’s 378 reimbursement policies or reimbursement determination regarding 379 the care provided to the plaintiff are not admissible as 380 evidence in any medical negligence action. However, the 381 discovery of the presence of a foreign body, such as a sponge, 382 clamp, forceps, surgical needle, or other paraphernalia commonly 383 used in surgical, examination, or diagnostic procedures, shall 384 be prima facie evidence of negligence on the part of the health 385 care provider. 386 (4)(a) The Legislature is cognizant of the changing trends 387 and techniques for the delivery of health care in this state and 388 the discretion that is inherent in the diagnosis, care, and 389 treatment of patients by different health care providers. The 390 failure of a health care provider to order, perform, or 391 administer supplemental diagnostic tests isshallnotbe392 actionable if the health care provider acted in good faith and 393 with due regard for the prevailing professional standard of 394 care. 395 (b) In an action for damages based on death or personal 396 injury which alleges that such death or injury resulted from the 397 failure of a health care provider to order, perform, or 398 administer supplemental diagnostic tests, the claimant has the 399 burden of proving by clear and convincing evidence that the 400 alleged actions of the health care provider represented a breach 401 of the prevailing professional standard of care. 402 (5) A person may not give expert testimony concerning the 403 prevailing professional standard of care unless thethatperson 404 is alicensedhealth care provider who holds an active and valid 405 license and conducts a complete review of the pertinent medical 406 records and meets the following criteria: 407 (a) If the health care provider against whom or on whose 408 behalf the testimony is offered is a specialist, the expert 409 witness must: 410 1. Specialize in the same specialty as the health care 411 provider against whom or on whose behalf the testimony is 412 offered; or specialize in a similar specialty that includes the 413 evaluation, diagnosis, or treatment of the medical condition 414 that is the subject of the claim and have prior experience 415 treating similar patients; and 416 2. Have devoted professional time during the 3 years 417 immediately preceding the date of the occurrence that is the 418 basis for the action to: 419 a. The active clinical practice of, or consulting with 420 respect to, the same or similar specialty that includes the 421 evaluation, diagnosis, or treatment of the medical condition 422 that is the subject of the claim and have prior experience 423 treating similar patients; 424 b. Instruction of students in an accredited health 425 professional school or accredited residency or clinical research 426 program in the same or similar specialty; or 427 c. A clinical research program that is affiliated with an 428 accredited health professional school or accredited residency or 429 clinical research program in the same or similar specialty. 430 (b) If the health care provider against whom or on whose 431 behalf the testimony is offered is a general practitioner, the 432 expert witness must have devoted professional time during the 5 433 years immediately preceding the date of the occurrence that is 434 the basis for the action to: 435 1. The active clinical practice or consultation as a 436 general practitioner; 437 2. The instruction of students in an accredited health 438 professional school or accredited residency program in the 439 general practice of medicine; or 440 3. A clinical research program that is affiliated with an 441 accredited medical school or teaching hospital and that is in 442 the general practice of medicine. 443 (c) If the health care provider against whom or on whose 444 behalf the testimony is offered is a health care provider other 445 than a specialist or a general practitioner, the expert witness 446 must have devoted professional time during the 3 years 447 immediately preceding the date of the occurrence that is the 448 basis for the action to: 449 1. The active clinical practice of, or consulting with 450 respect to, the same or similar health profession as the health 451 care provider against whom or on whose behalf the testimony is 452 offered; 453 2. The instruction of students in an accredited health 454 professional school or accredited residency program in the same 455 or similar health profession in which the health care provider 456 against whom or on whose behalf the testimony is offered; or 457 3. A clinical research program that is affiliated with an 458 accredited medical school or teaching hospital and that is in 459 the same or similar health profession as the health care 460 provider against whom or on whose behalf the testimony is 461 offered. 462 (12) If a physician licensed under chapter 458 or chapter 463 459 or a dentist licensed under chapter 466 is the party against 464 whom, or on whose behalf, expert testimony about the prevailing 465 professional standard of care is offered, the expert witness 466 must be licensed under chapter 458, chapter 459, or chapter 466 467 or possess a valid expert witness certificate issued under s. 468 458.3175, s. 459.0066, or s. 466.005. 469 (13) A health care provider’s failure to comply with or 470 breach of any federal requirement is not admissible as evidence 471 in any medical negligence case in this state. 472 Section 11. Paragraph (a) of subsection (2), subsection 473 (5), and paragraph (b) of subsection (6) of section 766.106, 474 Florida Statutes, are amended to read: 475 766.106 Notice before filing action for medical negligence; 476 presuit screening period; offers for admission of liability and 477 for arbitration; informal discovery; review.— 478 (2) PRESUIT NOTICE.— 479 (a) After completion of presuit investigation pursuant to 480 s. 766.203(2) and prior to filing a complaint for medical 481 negligence, a claimant shall notify each prospective defendant 482 by certified mail, return receipt requested, of intent to 483 initiate litigation for medical negligence. Notice to each 484 prospective defendant must include, if available, a list of all 485 known health care providers seen by the claimant for the 486 injuries complained of subsequent to the alleged act of 487 negligence, all known health care providers during the 2-year 488 period prior to the alleged act of negligence who treated or 489 evaluated the claimant,andcopies of all of the medical records 490 relied upon by the expert in signing the affidavit, and the 491 executed authorization form provided in s. 766.1065.The492requirement of providing the list of known health care providers493may not serve as grounds for imposing sanctions for failure to494provide presuit discovery.495 (5) DISCOVERY AND ADMISSIBILITY.—ANostatement, 496 discussion, written document, report, or other work product 497 generated by the presuit screening process is not discoverable 498 or admissible in any civil action for any purpose by the 499 opposing party. All participants, including, but not limited to, 500 physicians, investigators, witnesses, and employees or 501 associates of the defendant, are immune from civil liability 502 arising from participation in the presuit screening process. 503 This subsection does not prevent a physician licensed under 504 chapter 458 or chapter 459 or a dentist licensed under chapter 505 466 who submits a verified written expert medical opinion from 506 being subject to denial of a license or disciplinary action 507 under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 508 466.028(1)(ll). 509 (6) INFORMAL DISCOVERY.— 510 (b) Informal discovery may be used by a party to obtain 511 unsworn statements, the production of documents or things, and 512 physical and mental examinations, as follows: 513 1. Unsworn statements.—Any party may require other parties 514 to appear for the taking of an unsworn statement. Such 515 statements may be used only for the purpose of presuit screening 516 and are not discoverable or admissible in any civil action for 517 any purpose by any party. A party desiring to take the unsworn 518 statement of any party must give reasonable notice in writing to 519 all parties. The notice must state the time and place for taking 520 the statement and the name and address of the party to be 521 examined. Unless otherwise impractical, the examination of any 522 party must be done at the same time by all other parties. Any 523 party may be represented by counsel at the taking of an unsworn 524 statement. An unsworn statement may be recorded electronically, 525 stenographically, or on videotape. The taking of unsworn 526 statements is subject to the provisions of the Florida Rules of 527 Civil Procedure and may be terminated for abuses. 528 2. Documents or things.—Any party may request discovery of 529 documents or things. The documents or things must be produced, 530 at the expense of the requesting party, within 20 days after the 531 date of receipt of the request. A party is required to produce 532 discoverable documents or things within that party’s possession 533 or control. Medical records shall be produced as provided in s. 534 766.204. 535 3. Physical and mental examinations.—A prospective 536 defendant may require an injured claimant to appear for 537 examination by an appropriate health care provider. The 538 prospective defendant shall give reasonable notice in writing to 539 all parties as to the time and place for examination. Unless 540 otherwise impractical, a claimant is required to submit to only 541 one examination on behalf of all potential defendants. The 542 practicality of a single examination must be determined by the 543 nature of the claimant’s condition, as it relates to the 544 liability of each prospective defendant. Such examination report 545 is available to the parties and their attorneys upon payment of 546 the reasonable cost of reproduction and may be used only for the 547 purpose of presuit screening. Otherwise, such examination report 548 is confidential and exempt from the provisions of s. 119.07(1) 549 and s. 24(a), Art. I of the State Constitution. 550 4. Written questions.—Any party may request answers to 551 written questions, the number of which may not exceed 30, 552 including subparts. A response must be made within 20 days after 553 receipt of the questions. 554 5. Ex parte interviews of treating health care providers.—A 555 prospective defendant or his or her legal representative may 556 interview the claimant’s treating health care providers without 557 notice to or the presence of the claimant or the claimant’s 558 legal representative. 559 6.5.Unsworn statements of treating health care providers 560Medical information release.—The claimant must execute a medical561information release that allowsA prospective defendant or his 562 or her legal representative may alsototake unsworn statements 563 of the claimant’s treating health care providersphysicians. The 564 statements must be limited to those areas that are potentially 565 relevant to the claim of personal injury or wrongful death. 566 Subject to the procedural requirements of subparagraph 1., a 567 prospective defendant may take unsworn statements from a 568 claimant’s treating physicians. Reasonable notice and 569 opportunity to be heard must be given to the claimant or the 570 claimant’s legal representative before taking unsworn 571 statements. The claimant or claimant’s legal representative has 572 the right to attend the taking of such unsworn statements. 573 Section 12. Section 766.1065, Florida Statutes, is created 574 to read: 575 766.1065 Authorization for release of protected health 576 information.— 577 (1) Presuit notice of intent to initiate litigation for 578 medical negligence under s. 766.106(2) must be accompanied by an 579 authorization for release of protected health information in the 580 form specified by this section, authorizing the disclosure of 581 protected health information that is potentially relevant to the 582 claim of personal injury or wrongful death. The presuit notice 583 is void if this authorization does not accompany the presuit 584 notice and other materials required by s. 766.106(2). 585 (2) If the authorization required by this section is 586 revoked, the presuit notice under s. 766.106(2) is deemed 587 retroactively void from the date of issuance, and any tolling 588 effect that the presuit notice may have had on any applicable 589 statute-of-limitations period is retroactively rendered void. 590 (3) The authorization required by this section shall be in 591 the following form and shall be construed in accordance with the 592 “Standards for Privacy of Individually Identifiable Health 593 Information” in 45 C.F.R. parts 160 and 164: 594 595 AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION 596 597 A. I,_(...Name of patient or authorized 598 representative...) [hereinafter “Patient”], authorize 599 that (...Name of health care provider to whom the 600 presuit notice is directed...) and his/her/its 601 insurer(s), self-insurer(s), and attorney(s) may 602 obtain and disclose (within the parameters set out 603 below) the protected health information described 604 below for the following specific purposes: 605 1. Facilitating the investigation and evaluation 606 of the medical negligence claim described in the 607 accompanying presuit notice; or 608 2. Defending against any litigation arising out 609 of the medical negligence claim made on the basis of 610 the accompanying presuit notice. 611 B. The health information obtained, used, or 612 disclosed extends to, and includes, the verbal as well 613 as the written and is described as follows: 614 1. The health information in the custody of the 615 following health care providers who have examined, 616 evaluated, or treated the Patient in connection with 617 injuries complained of after the alleged act of 618 negligence: (List the name and current address of all 619 health care providers). This authorization extends to 620 any additional health care providers that may in the 621 future evaluate, examine, or treat the Patient for the 622 injuries complained of. 623 2. The health information in the custody of the 624 following health care providers who have examined, 625 evaluated, or treated the Patient during a period 626 commencing 2 years before the incident that is the 627 basis of the accompanying presuit notice. 628 629 (List the name and current address of such health care 630 providers, if applicable.) 631 632 C. This authorization does not apply to the 633 following list of health care providers possessing 634 health care information about the Patient because the 635 Patient certifies that such health care information is 636 not potentially relevant to the claim of personal 637 injury or wrongful death that is the basis of the 638 accompanying presuit notice. 639 640 (List the name of each health care provider to whom 641 this authorization does not apply and the inclusive 642 dates of examination, evaluation, or treatment to be 643 withheld from disclosure. If none, specify “none.”) 644 645 D. The persons or class of persons to whom the 646 Patient authorizes such health information to be 647 disclosed or by whom such health information is to be 648 used: 649 1. Any health care provider providing care or 650 treatment for the Patient. 651 2. Any liability insurer or self-insurer 652 providing liability insurance coverage, self 653 insurance, or defense to any health care provider to 654 whom presuit notice is given regarding the care and 655 treatment of the Patient. 656 3. Any consulting or testifying expert employed 657 by or on behalf of (name of health care provider to 658 whom presuit notice was given), his/her/its 659 insurer(s), self-insurer(s), or attorney(s) regarding 660 to the matter of the presuit notice accompanying this 661 authorization. 662 4. Any attorney (including secretarial, clerical, 663 or paralegal staff) employed by or on behalf of (name 664 of health care provider to whom presuit notice was 665 given) regarding the matter of the presuit notice 666 accompanying this authorization. 667 5. Any trier of the law or facts relating to any 668 suit filed seeking damages arising out of the medical 669 care or treatment of the Patient. 670 E. This authorization expires upon resolution of 671 the claim or at the conclusion of any litigation 672 instituted in connection with the matter of the 673 presuit notice accompanying this authorization, 674 whichever occurs first. 675 F. The Patient understands that, without 676 exception, the Patient has the right to revoke this 677 authorization in writing. The Patient further 678 understands that the consequence of any such 679 revocation is that the presuit notice under s. 680 766.106(2), Florida Statutes, is deemed retroactively 681 void from the date of issuance, and any tolling effect 682 that the presuit notice may have had on any applicable 683 statute-of-limitations period is retroactively 684 rendered void. 685 G. The Patient understands that signing this 686 authorization is not a condition for continued 687 treatment, payment, enrollment, or eligibility for 688 health plan benefits. 689 H. The Patient understands that information used 690 or disclosed under this authorization may be subject 691 to additional disclosure by the recipient and may not 692 be protected by federal HIPAA privacy regulations. 693 694 Signature of Patient/Representative: .... 695 Date: .... 696 Name of Patient/Representative: .... 697 Description of Representative’s Authority: .... 698 Section 13. Subsection (2) of section 766.206, Florida 699 Statutes, is amended to read: 700 766.206 Presuit investigation of medical negligence claims 701 and defenses by court.— 702 (2) If the court finds that the notice of intent to 703 initiate litigation mailed by the claimant doesisnot complyin704compliancewith the reasonable investigation requirements of ss. 705 766.201-766.212, including a review of the claim and a verified 706 written medical expert opinion by an expert witness as defined 707 in s. 766.202, or that the authorization accompanying the notice 708 of intent required under s. 766.1065 is not completed in good 709 faith by the claimant, the court shall dismiss the claim, and 710 the person who mailed such notice of intent, whether the 711 claimant or the claimant’s attorney, shall be personally liable 712 for all attorney’s fees and costs incurred during the 713 investigation and evaluation of the claim, including the 714 reasonable attorney’s fees and costs of the defendant or the 715 defendant’s insurer. 716 Section 14. Section 768.0981, Florida Statutes, is amended 717 to read: 718 768.0981 Limitation on actions against insurers, prepaid 719 limited health service organizations, health maintenance 720 organizations, hospitals, or prepaid health clinics.—An entity 721 licensed or certified under chapter 395, chapter 624, chapter 722 636, or chapter 641 isshallnotbeliable for the medical 723 negligence of a health care provider with whom the licensed or 724 certified entity has entered into a contract, other than an 725 employee of such licensed or certified entity, unless the 726 licensed or certified entity expressly directs or exercises 727 actual control over the specific conduct that caused injury. 728 Section 15. This act shall take effect July 1, 2011.