Bill Text: FL H0479 | 2011 | Regular Session | Engrossed

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Bill Title: Medical Malpractice

Spectrum: Moderate Partisan Bill (Republican 19-4-2)

Status: (Engrossed - Dead) 2011-05-04 - Concurred in 5 amendment(s) (462134, 512636, 593896, 855110, 911838) -HJ 1149, 1150 [H0479 Detail]

Download: Florida-2011-H0479-Engrossed.html

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CS/CS/CS/CS/HB 479

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 certificates
5	to certain physicians and dentists licensed outside of the
6	state; providing application and certification
7	requirements; establishing application fees; providing for
8	the validity and use of certifications; exempting
9	physicians and dentists issued certifications from certain
10	licensure and fee requirements; amending ss. 458.331,
11	459.015, and 466.028, F.S.; providing additional acts that
12	constitute grounds for denial of a license or disciplinary
13	action to which penalties apply; providing construction
14	with respect to the doctrine of incorporation by
15	reference; amending ss. 458.351 and 459.026, F.S.;
16	requiring the Board of Medicine and the Board of
17	Osteopathic Medicine to adopt within a specified period
18	certain patient forms specifying cataract surgery risks;
19	specifying that an incident resulting from risks disclosed
20	in the patient form is not an adverse incident; providing
21	for the execution and admissibility of the patient forms
22	in civil and administrative proceedings; creating a
23	rebuttable presumption that a physician disclosed cataract
24	surgery risks if the patient form is executed; amending s.
25	627.4147, F.S.; deleting a requirement that medical
26	malpractice insurance contracts contain a clause
27	authorizing the insurer to make and conclude certain
28	offers within policy limits over the insured's veto;
29	amending s. 766.102, F.S.; defining terms; providing that
30	certain insurance information is not admissible as
31	evidence in medical negligence actions; requiring that
32	certain expert witnesses who provide certain expert
33	testimony meet certain licensure or certification
34	requirements; excluding a health care provider's failure
35	to comply with or breach of federal requirements from
36	evidence in medical negligence cases in the state;
37	amending s. 766.106, F.S.; requiring a claimant for
38	medical malpractice to execute an authorization form;
39	revising provisions relating to discovery and
40	admissibility; allowing a prospective medical malpractice
41	defendant to interview a claimant's treating health care
42	providers without the presence of the claimant or the
43	claimant's legal representative; requiring a prospective
44	defendant to provide 10 days' notice before such
45	interviews; authorizing a prospective defendant to take
46	unsworn statements of a claimant's health care providers;
47	creating s. 766.1065, F.S.; requiring that presuit notice
48	for medical negligence claims be accompanied by an
49	authorization for release of protected health information;
50	providing requirements for the form of such authorization;
51	amending s. 766.110, F.S.; authorizing a health care
52	facility to use scientific diagnostic disease
53	methodologies that use information regarding specific
54	diseases in health care facilities and that are adopted by
55	the facility's medical review committee; amending s.
56	766.206, F.S.; requiring dismissal of a medical
57	malpractice claim if such authorization is not completed
58	in good faith; amending s. 768.135, F.S.; providing
59	immunity for volunteer team physicians under certain
60	circumstances; providing an effective 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
68	authorizing a physician who holds an active and valid license to
69	practice medicine in another state or a province of Canada to
70	provide expert testimony in this state, if the physician submits
71	to the 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 10 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 deceptive or fraudulent expert witness
120	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
158	authorizing a physician who holds an active and valid license to
159	practice osteopathic medicine in another state or a province of
160	Canada to provide expert testimony in this state, if the
161	physician submits 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 10 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 deceptive or fraudulent expert witness
210	testimony related to the practice of osteopathic medicine.
211	(11)  The purpose of this section is to facilitate uniform
212	discipline for those acts made punishable under this section
213	and, to this end, a reference to this section constitutes a
214	general reference under the doctrine of incorporation by
215	reference.
216	Section 6.  Section 466.005, Florida Statutes, is created
217	to read:
218	466.005  Expert witness certificate.-
219	(1)(a)  The department shall issue a certificate
220	authorizing a dentist who holds an active and valid license to
221	practice dentistry in another state or a province of Canada to
222	provide expert testimony in this state, if the dentist submits
223	to the department:
224	1.  A complete registration application containing the
225	dentist's legal name, mailing address, telephone number,
226	business locations, the names of the jurisdictions where the
227	dentist holds an active and valid license to practice dentistry,
228	and the license number or other identifying number issued to the
229	dentist by the jurisdiction's licensing entity; and
230	2.  An application fee of $50.
231	(b)  The department shall approve an application for an
232	expert witness certificate within 10 business days after receipt
233	of the completed application and payment of the application fee
234	if the applicant holds an active and valid license to practice
235	dentistry in another state or a province of Canada and has not
236	had a previous expert witness certificate revoked by the board.
237	An application is approved by default if the department does not
238	act upon the application within the required period. A dentist
239	must notify the department in writing of his or her intent to
240	rely on a certificate approved by default.
241	(c)  An expert witness certificate is valid for 2 years
242	after the date of issuance.
243	(2)  An expert witness certificate authorizes the dentist
244	to whom the certificate is issued to do only the following:
245	(a)  Provide a verified written medical expert opinion as
246	provided in s. 766.203.
247	(b)  Provide expert testimony about the prevailing
248	professional standard of care in connection with medical
249	negligence litigation pending in this state against a dentist
250	licensed under this chapter.
251	(3)  An expert witness certificate does not authorize a
252	dentist to engage in the practice of dentistry as defined in s.
253	466.003. A dentist issued a certificate under this section who
254	does not otherwise practice dentistry in this state is not
255	required to obtain a license under this chapter or pay any
256	license fees. An expert witness certificate shall be treated as
257	a license in any disciplinary action, and the holder of an
258	expert witness certificate shall be subject to discipline by the
259	board.
260	Section 7.  Subsection (8) is added to section 466.028,
261	Florida Statutes, paragraph (ll) of subsection (1) of that
262	section is redesignated as paragraph (mm), and a new paragraph
263	(ll) is added to that subsection, to read:
264	466.028  Grounds for disciplinary action; action by the
265	board.-
266	(1)  The following acts constitute grounds for denial of a
267	license or disciplinary action, as specified in s. 456.072(2):
268	(ll)  Providing deceptive or fraudulent expert witness
269	testimony related to the practice of dentistry.
270	(8)  The purpose of this section is to facilitate uniform
271	discipline for those acts made punishable under this section
272	and, to this end, a reference to this section constitutes a
273	general reference under the doctrine of incorporation by
274	reference.
275	Section 8.  Subsection (6) of section 459.026, Florida
276	Statutes, is renumbered as subsection (7), and a new subsection
277	(6) is added to that section to read:
278	459.026  Reports of adverse incidents in office practice
279	settings.-
280	(6)(a)  The board shall adopt rules establishing a standard
281	informed consent form that sets forth the recognized specific
282	risks related to cataract surgery. The board must propose such
283	rules within 90 days after the effective date of this
284	subsection.
285	(b)  Before formally proposing the rule, the board must
286	consider information from physicians licensed under chapter 458
287	or this chapter regarding recognized specific risks related to
288	cataract surgery and the standard informed consent forms adopted
289	for use in the medical field by other states.
290	(c)  A patient's informed consent is not executed until the
291	patient, or a person authorized by the patient to give consent,
292	and a competent witness sign the form adopted by the board.
293	(d)  An incident resulting from recognized specific risks
294	described in the signed consent form is not considered an
295	adverse incident for purposes of s. 395.0197 and this section.
296	(e)  In a civil action or administrative proceeding against
297	a physician based on his or her alleged failure to properly
298	disclose the risks of cataract surgery, a patient's informed
299	consent executed as provided in paragraph (c) on the form
300	adopted by the board is admissible as evidence and creates a
301	rebuttable presumption that the physician properly disclosed the
302	risks.
303	Section 9.  Paragraph (b) of subsection (1) of section
304	627.4147, Florida Statutes, is amended to read:
305	627.4147  Medical malpractice insurance contracts.-
306	(1)  In addition to any other requirements imposed by law,
307	each self-insurance policy as authorized under s. 627.357 or s.
308	624.462 or insurance policy providing coverage for claims
309	arising out of the rendering of, or the failure to render,
310	medical care or services, including those of the Florida Medical
311	Malpractice Joint Underwriting Association, shall include:
312	(b)1.  Except as provided in subparagraph 2., a clause
313	authorizing the insurer or self-insurer to determine, to make,
314	and to conclude, without the permission of the insured, any
315	offer of admission of liability and for arbitration pursuant to
316	s. 766.106, settlement offer, or offer of judgment, if the offer
317	is within the policy limits. It is against public policy for any
318	insurance or self-insurance policy to contain a clause giving
319	the insured the exclusive right to veto any offer for admission
320	of liability and for arbitration made pursuant to s. 766.106,
321	settlement offer, or offer of judgment, when such offer is
322	within the policy limits. However, any offer of admission of
323	liability, settlement offer, or offer of judgment made by an
324	insurer or self-insurer shall be made in good faith and in the
325	best interests of the insured.
326	2.a.  With respect to dentists licensed under chapter 466,
327	A clause clearly stating whether or not the insured has the
328	exclusive right to veto any offer of admission of liability and
329	for arbitration pursuant to s. 766.106, settlement offer, or
330	offer of judgment if the offer is within policy limits. An
331	insurer or self-insurer shall not make or conclude, without the
332	permission of the insured, any offer of admission of liability
333	and for arbitration pursuant to s. 766.106, settlement offer, or
334	offer of judgment, if such offer is outside the policy limits.
335	However, any offer for admission of liability and for
336	arbitration made under s. 766.106, settlement offer, or offer of
337	judgment made by an insurer or self-insurer shall be made in
338	good faith and in the best interest of the insured.
339	2.b.  If the policy contains a clause stating the insured
340	does not have the exclusive right to veto any offer or admission
341	of liability and for arbitration made pursuant to s. 766.106,
342	settlement offer or offer of judgment, the insurer or self-
343	insurer shall provide to the insured or the insured's legal
344	representative by certified mail, return receipt requested, a
345	copy of the final offer of admission of liability and for
346	arbitration made pursuant to s. 766.106, settlement offer or
347	offer of judgment and at the same time such offer is provided to
348	the claimant. A copy of any final agreement reached between the
349	insurer and claimant shall also be provided to the insurer or
350	his or her legal representative by certified mail, return
351	receipt requested not more than 10 days after affecting such
352	agreement.
353	Section 10.  Subsections (3) and (5) of section 766.102,
354	Florida Statutes, are amended, subsection (12) of that section
355	is renumbered as subsection (14), and new subsections (12) and
356	(13) are added to that section, to read:
357	766.102  Medical negligence; standards of recovery; expert
358	witness.-
359	(3)(a)  As used in this subsection, the term:
360	1.  "Insurer" means any public or private insurer,
361	including the Centers for Medicare and Medicaid Services.
362	2.  "Reimbursement determination" means an insurer's
363	determination of the amount that the insurer will reimburse a
364	health care provider for health care services.
365	3.  "Reimbursement policies" means an insurer's policies
366	and procedures governing its decisions regarding health
367	insurance coverage and method of payment and the data upon which
368	such policies and procedures are based, including, but not
369	limited to, data from national research groups and other patient
370	safety data as defined in s. 766.1016.
371	(b)  The existence of a medical injury does shall not
372	create any inference or presumption of negligence against a
373	health care provider, and the claimant must maintain the burden
374	of proving that an injury was proximately caused by a breach of
375	the prevailing professional standard of care by the health care
376	provider. Any records, policies, or testimony of an insurer's
377	reimbursement policies or reimbursement determination regarding
378	the care provided to the plaintiff are not admissible as
379	evidence in any medical negligence action. However, the
380	discovery of the presence of a foreign body, such as a sponge,
381	clamp, forceps, surgical needle, or other paraphernalia commonly
382	used in surgical, examination, or diagnostic procedures, shall
383	be prima facie evidence of negligence on the part of the health
384	care provider.
385	(5)  A person may not give expert testimony concerning the
386	prevailing professional standard of care unless the that person
387	is a licensed health care provider who holds an active and valid
388	license and conducts a complete review of the pertinent medical
389	records and meets the following criteria:
390	(a)  If the health care provider against whom or on whose
391	behalf the testimony is offered is a specialist, the expert
392	witness must:
393	1.  Specialize in the same specialty as the health care
394	provider against whom or on whose behalf the testimony is
395	offered; or specialize in a similar specialty that includes the
396	evaluation, diagnosis, or treatment of the medical condition
397	that is the subject of the claim and have prior experience
398	treating similar patients; and
399	2.  Have devoted professional time during the 3 years
400	immediately preceding the date of the occurrence that is the
401	basis for the action to:
402	a.  The active clinical practice of, or consulting with
403	respect to, the same or similar specialty that includes the
404	evaluation, diagnosis, or treatment of the medical condition
405	that is the subject of the claim and have prior experience
406	treating similar patients;
407	b.  Instruction of students in an accredited health
408	professional school or accredited residency or clinical research
409	program in the same or similar specialty; or
410	c.  A clinical research program that is affiliated with an
411	accredited health professional school or accredited residency or
412	clinical research program in the same or similar specialty.
413	(b)  If the health care provider against whom or on whose
414	behalf the testimony is offered is a general practitioner, the
415	expert witness must have devoted professional time during the 5
416	years immediately preceding the date of the occurrence that is
417	the basis for the action to:
418	1.  The active clinical practice or consultation as a
419	general practitioner;
420	2.  The instruction of students in an accredited health
421	professional school or accredited residency program in the
422	general practice of medicine; or
423	3.  A clinical research program that is affiliated with an
424	accredited medical school or teaching hospital and that is in
425	the general practice of medicine.
426	(c)  If the health care provider against whom or on whose
427	behalf the testimony is offered is a health care provider other
428	than a specialist or a general practitioner, the expert witness
429	must have devoted professional time during the 3 years
430	immediately preceding the date of the occurrence that is the
431	basis for the action to:
432	1.  The active clinical practice of, or consulting with
433	respect to, the same or similar health profession as the health
434	care provider against whom or on whose behalf the testimony is
435	offered;
436	2.  The instruction of students in an accredited health
437	professional school or accredited residency program in the same
438	or similar health profession in which the health care provider
439	against whom or on whose behalf the testimony is offered; 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 same or similar health profession as the health care
443	provider against whom or on whose behalf the testimony is
444	offered.
445	(12)  If a physician licensed under chapter 458 or chapter
446	459 or a dentist licensed under chapter 466 is the party against
447	whom, or on whose behalf, expert testimony about the prevailing
448	professional standard of care is offered, the expert witness
449	must be licensed under chapter 458, chapter 459, or chapter 466
450	or possess a valid expert witness certificate issued under s.
451	458.3175, s. 459.0066, or s. 466.005.
452	(13)  A health care provider's failure to comply with or
453	breach of any federal requirement is not admissible as evidence
454	in any medical negligence case in this state.
455	Section 11.  Paragraph (a) of subsection (2), subsection
456	(5), and paragraph (b) of subsection (6) of section 766.106,
457	Florida Statutes, are amended to read:
458	766.106  Notice before filing action for medical
459	negligence; presuit screening period; offers for admission of
460	liability and for arbitration; informal discovery; review.-
461	(2)  PRESUIT NOTICE.-
462	(a)  After completion of presuit investigation pursuant to
463	s. 766.203(2) and prior to filing a complaint for medical
464	negligence, a claimant shall notify each prospective defendant
465	by certified mail, return receipt requested, of intent to
466	initiate litigation for medical negligence. Notice to each
467	prospective defendant must include, if available, a list of all
468	known health care providers seen by the claimant for the
469	injuries complained of subsequent to the alleged act of
470	negligence, all known health care providers during the 2-year
471	period prior to the alleged act of negligence who treated or
472	evaluated the claimant, and copies of all of the medical records
473	relied upon by the expert in signing the affidavit, and the
474	executed authorization form provided in s. 766.1065. The
475	requirement of providing the list of known health care providers
476	may not serve as grounds for imposing sanctions for failure to
477	provide presuit discovery.
478	(5)  DISCOVERY AND ADMISSIBILITY.-A No statement,
479	discussion, written document, report, or other work product
480	generated by the presuit screening process is not discoverable
481	or admissible in any civil action for any purpose by the
482	opposing party. All participants, including, but not limited to,
483	physicians, investigators, witnesses, and employees or
484	associates of the defendant, are immune from civil liability
485	arising from participation in the presuit screening process.
486	This subsection does not prevent a physician licensed under
487	chapter 458 or chapter 459 or a dentist licensed under chapter
488	466 who submits a verified written expert medical opinion from
489	being subject to denial of a license or disciplinary action
490	under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
491	466.028(1)(ll).
492	(6)  INFORMAL DISCOVERY.-
493	(b)  Informal discovery may be used by a party to obtain
494	unsworn statements, the production of documents or things, and
495	physical and mental examinations, as follows:
496	1.  Unsworn statements.-Any party may require other parties
497	to appear for the taking of an unsworn statement. Such
498	statements may be used only for the purpose of presuit screening
499	and are not discoverable or admissible in any civil action for
500	any purpose by any party. A party desiring to take the unsworn
501	statement of any party must give reasonable notice in writing to
502	all parties. The notice must state the time and place for taking
503	the statement and the name and address of the party to be
504	examined. Unless otherwise impractical, the examination of any
505	party must be done at the same time by all other parties. Any
506	party may be represented by counsel at the taking of an unsworn
507	statement. An unsworn statement may be recorded electronically,
508	stenographically, or on videotape. The taking of unsworn
509	statements is subject to the provisions of the Florida Rules of
510	Civil Procedure and may be terminated for abuses.
511	2.  Documents or things.-Any party may request discovery of
512	documents or things. The documents or things must be produced,
513	at the expense of the requesting party, within 20 days after the
514	date of receipt of the request. A party is required to produce
515	discoverable documents or things within that party's possession
516	or control. Medical records shall be produced as provided in s.
517	766.204.
518	3.  Physical and mental examinations.-A prospective
519	defendant may require an injured claimant to appear for
520	examination by an appropriate health care provider. The
521	prospective defendant shall give reasonable notice in writing to
522	all parties as to the time and place for examination. Unless
523	otherwise impractical, a claimant is required to submit to only
524	one examination on behalf of all potential defendants. The
525	practicality of a single examination must be determined by the
526	nature of the claimant's condition, as it relates to the
527	liability of each prospective defendant. Such examination report
528	is available to the parties and their attorneys upon payment of
529	the reasonable cost of reproduction and may be used only for the
530	purpose of presuit screening. Otherwise, such examination report
531	is confidential and exempt from the provisions of s. 119.07(1)
532	and s. 24(a), Art. I of the State Constitution.
533	4.  Written questions.-Any party may request answers to
534	written questions, the number of which may not exceed 30,
535	including subparts. A response must be made within 20 days after
536	receipt of the questions.
537	5.  Unsworn statements of treating health care providers
538	Medical information release.-The claimant must execute a medical
539	information release that allows A prospective defendant or his
540	or her legal representative may also to take unsworn statements
541	of the claimant's treating health care providers physicians. The
542	statements must be limited to those areas that are potentially
543	relevant to the claim of personal injury or wrongful death.
544	Subject to the procedural requirements of subparagraph 1., a
545	prospective defendant may take unsworn statements from a
546	claimant's treating physicians. Reasonable notice and
547	opportunity to be heard must be given to the claimant or the
548	claimant's legal representative before taking unsworn
549	statements. The claimant or claimant's legal representative has
550	the right to attend the taking of such unsworn statements.
551	Section 12.  Section 766.1065, Florida Statutes, is created
552	to read:
553	766.1065  Authorization for release of protected health
554	information.-
555	(1)  Presuit notice of intent to initiate litigation for
556	medical negligence under s. 766.106(2) must be accompanied by an
557	authorization for release of protected health information in the
558	form specified by this section, authorizing the disclosure of
559	protected health information that is potentially relevant to the
560	claim of personal injury or wrongful death. The presuit notice
561	is void if this authorization does not accompany the presuit
562	notice and other materials required by s. 766.106(2).
563	(2)  If the authorization required by this section is
564	revoked, the presuit notice under s. 766.106(2) is deemed
565	retroactively void from the date of issuance, and any tolling
566	effect that the presuit notice may have had on any applicable
567	statute-of-limitations period is retroactively rendered void.
568	(3)  The authorization required by this section shall be in
569	the following form and shall be construed in accordance with the
570	"Standards for Privacy of Individually Identifiable Health
571	Information" in 45 C.F.R. parts 160 and 164:
572
573	AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
574
575	A.  I,_(...Name of patient or authorized
576	representative...) [hereinafter "Patient"], authorize
577	that (...Name of health care provider to whom the
578	presuit notice is directed...) and his/her/its
579	insurer(s), self-insurer(s), and attorney(s) may
580	obtain and disclose (within the parameters set out
581	below) the protected health information described
582	below for the following specific purposes:
583	1.  Facilitating the investigation and evaluation
584	of the medical negligence claim described in the
585	accompanying presuit notice; or
586	2.  Defending against any litigation arising out
587	of the medical negligence claim made on the basis of
588	the accompanying presuit notice.
589	B.  The health information obtained, used, or
590	disclosed extends to, and includes, the verbal as well
591	as the written and is described as follows:
592	1.  The health information in the custody of the
593	following health care providers who have examined,
594	evaluated, or treated the Patient in connection with
595	injuries complained of after the alleged act of
596	negligence: (List the name and current address of all
597	health care providers). This authorization extends to
598	any additional health care providers that may in the
599	future evaluate, examine, or treat the Patient for the
600	injuries complained of.
601	2.  The health information in the custody of the
602	following health care providers who have examined,
603	evaluated, or treated the Patient during a period
604	commencing 2 years before the incident that is the
605	basis of the accompanying presuit notice.
606
607	(List the name and current address of such health care
608	providers, if applicable.)
609
610	C.  This authorization does not apply to the
611	following list of health care providers possessing
612	health care information about the Patient because the
613	Patient certifies that such health care information is
614	not potentially relevant to the claim of personal
615	injury or wrongful death that is the basis of the
616	accompanying presuit notice.
617
618	(List the name of each health care provider to whom
619	this authorization does not apply and the inclusive
620	dates of examination, evaluation, or treatment to be
621	withheld from disclosure. If none, specify "none.")
622
623	D.  The persons or class of persons to whom the
624	Patient authorizes such health information to be
625	disclosed or by whom such health information is to be
626	used:
627	1.  Any health care provider providing care or
628	treatment for the Patient.
629	2.  Any liability insurer or self-insurer
630	providing liability insurance coverage, self-
631	insurance, or defense to any health care provider to
632	whom presuit notice is given regarding the care and
633	treatment of the Patient.
634	3.  Any consulting or testifying expert employed
635	by or on behalf of (name of health care provider to
636	whom presuit notice was given) and his/her/its
637	insurer(s), self-insurer(s), or attorney(s) regarding
638	to the matter of the presuit notice accompanying this
639	authorization.
640	4.  Any attorney (including secretarial,
641	clerical, or paralegal staff) employed by or on behalf
642	of (name of health care provider to whom presuit
643	notice was given) regarding the matter of the presuit
644	notice accompanying this authorization.
645	5.  Any trier of the law or facts relating to any
646	suit filed seeking damages arising out of the medical
647	care or treatment of the Patient.
648	E.  This authorization expires upon resolution of
649	the claim or at the conclusion of any litigation
650	instituted in connection with the matter of the
651	presuit notice accompanying this authorization,
652	whichever occurs first.
653	F.  The Patient understands that, without
654	exception, the Patient has the right to revoke this
655	authorization in writing. The Patient further
656	understands that the consequence of any such
657	revocation is that the presuit notice under s.
658	766.106(2), Florida Statutes, is deemed retroactively
659	void from the date of issuance, and any tolling effect
660	that the presuit notice may have had on any applicable
661	statute-of-limitations period is retroactively
662	rendered void.
663	G.  The Patient understands that signing this
664	authorization is not a condition for continued
665	treatment, payment, enrollment, or eligibility for
666	health plan benefits.
667	H.  The Patient understands that information used
668	or disclosed under this authorization may be subject
669	to additional disclosure by the recipient and may not
670	be protected by federal HIPAA privacy regulations.
671
672	Signature of Patient/Representative: ....
673	Date: ....
674	Name of Patient/Representative: ....
675	Description of Representative's Authority: ....
676	Section 13.  Subsection (3) is added to section 766.110,
677	Florida Statutes, to read:
678	766.110  Liability of health care facilities.-
679	(3)  In order to ensure comprehensive risk management for
680	diagnosis of disease, a health care facility, including a
681	hospital or ambulatory surgical center, as defined in chapter
682	395, may use scientific diagnostic disease methodologies that
683	use information regarding specific diseases in health care
684	facilities and that are adopted by the facility's medical review
685	committee.
686	Section 14.  Subsection (2) of section 766.206, Florida
687	Statutes, is amended to read:
688	766.206  Presuit investigation of medical negligence claims
689	and defenses by court.-
690	(2)  If the court finds that the notice of intent to
691	initiate litigation mailed by the claimant does is not comply in
692	compliance with the reasonable investigation requirements of ss.
693	766.201-766.212, including a review of the claim and a verified
694	written medical expert opinion by an expert witness as defined
695	in s. 766.202, or that the authorization accompanying the notice
696	of intent required under s. 766.1065 is not completed in good
697	faith by the claimant, the court shall dismiss the claim, and
698	the person who mailed such notice of intent, whether the
699	claimant or the claimant's attorney, is shall be personally
700	liable for all attorney's fees and costs incurred during the
701	investigation and evaluation of the claim, including the
702	reasonable attorney's fees and costs of the defendant or the
703	defendant's insurer.
704	Section 15.  Section 768.135, Florida Statutes, is amended
705	to read:
706	768.135  Volunteer team physicians; immunity.-
707	(1)  A volunteer team physician is any person licensed to
708	practice medicine pursuant to chapter 458, chapter 459, chapter
709	460, chapter 461, or chapter 466:
710	(a)(1)  Who is acting in the capacity of a volunteer team
711	physician in attendance at an athletic event sponsored by a
712	public or private elementary or secondary school; and
713	(b)(2)  Who gratuitously and in good faith prior to the
714	athletic event agrees to render emergency care or treatment to
715	any participant in such event in connection with an emergency
716	arising during or as the result of such event, without objection
717	of such participant.,
718	(2)  A volunteer team physician is shall not be held liable
719	for any civil damages as a result of such care or treatment or
720	as a result of any act or failure to act in providing or
721	arranging further medical treatment unless the when such care or
722	treatment was rendered in a wrongful manner as a reasonably
723	prudent person similarly licensed to practice medicine would
724	have acted under the same or similar circumstances.
725	(3)  A practitioner licensed under chapter 458, chapter
726	459, chapter 460, or s. 464.012 who gratuitously and in good
727	faith conducts an evaluation pursuant to s. 1006.20(2)(c) is not
728	liable for any civil damages arising from that evaluation unless
729	the evaluation was conducted in a wrongful manner.
730	(4)  As used in this section, the term "wrongful manner"
731	means in bad faith or with malicious purpose or in a manner
732	exhibiting wanton and willful disregard of human rights, safety,
733	or property, and shall be construed in conformity with the
734	standard set forth in s. 768.28(9)(a).
735	Section 15.  This act shall take effect October 1, 2011,
736	and applies to causes of action accruing on or after that date.

CODING: Words stricken are deletions; words underlined are additions.