Bill Text: FL S1362 | 2014 | Regular Session | Introduced
Bill Title: Compensation for Personal Injury or Wrongful Death Arising From a Medical Injury
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2014-05-02 - Died in Judiciary [S1362 Detail]
Download: Florida-2014-S1362-Introduced.html
Florida Senate - 2014 SB 1362 By Senator Grimsley 21-00475A-14 20141362__ 1 A bill to be entitled 2 An act relating to compensation for personal injury or 3 wrongful death arising from a medical injury; amending 4 s. 456.013, F.S.; requiring the Department of Health 5 or certain boards thereof to require the completion of 6 a course relating to communication of medical errors 7 as part of the licensure and renewal process; 8 providing a directive to the Division of Law Revision 9 and Information; creating s. 766.401, F.S.; providing 10 a short title; creating s. 766.402, F.S.; providing 11 definitions; creating s. 766.403, F.S.; providing 12 legislative findings and intent; specifying that 13 certain provisions are an exclusive remedy for 14 personal injury or wrongful death; providing for early 15 offer of settlement; prohibiting compensation for 16 certain persons that file an application for wrongful 17 death; creating s. 766.404, F.S.; creating the Patient 18 Compensation System; creating a board; specifying the 19 membership, meetings, and certain compensation of the 20 board; specifying staff, offices, committees, and 21 panels and the powers and duties thereof; prohibiting 22 certain conflicts of interest; authorizing rulemaking; 23 creating s. 766.405, F.S.; establishing an application 24 process; providing for notice to providers and 25 insurers; requiring applications be filed within a 26 certain time period; creating s. 766.406, F.S.; 27 providing for disposition, support, and review of 28 applications; providing for a determination of 29 compensation upon a prima facie claim of a medical 30 injury having been made; requiring that compensation 31 for an application be offset by any past and future 32 collateral source payments; providing for 33 determinations of malpractice for purposes of a 34 specified constitutional provision; providing for 35 notice of applications determined to constitute a 36 medical injury for purposes of professional 37 discipline; providing for payment of compensation 38 awards; creating s. 766.407, F.S.; providing for 39 review of awards by an administrative law judge; 40 creating s. 766.408, F.S.; requiring annual 41 contributions from specified providers to provide 42 administrative expenses; providing maximum 43 contribution rates; specifying payment dates; 44 providing for disciplinary proceedings for failure to 45 pay; providing for deposit of funds; authorizing 46 providers to opt out of participation; providing 47 requirements for such an election; creating s. 48 766.409, F.S.; requiring notice to patients of 49 provider participation in the Patient Compensation 50 System; creating s. 766.410, F.S.; requiring an annual 51 report to the Governor and the Legislature; providing 52 for retroactive applicability; providing severability; 53 providing effective dates. 54 55 Be It Enacted by the Legislature of the State of Florida: 56 57 Section 1. Subsection (7) of section 456.013, Florida 58 Statutes, is amended to read: 59 456.013 Department; general licensing provisions.— 60 (7) The boards, or the department when there is no board, 61 shall require the completion of a 2-hour course relating to 62 prevention and communication of medical errors as part of the 63 licensure and renewal process. The 2-hour course shall count 64 towards the total number of continuing education hours required 65 for the profession. The course shall be approved by the board or 66 department, as appropriate, and shall include a study of root 67 cause analysis, error reduction and prevention,andpatient 68 safety, and communication of medical errors to patients and 69 their families. In addition, the course approved by the Board of 70 Medicine and the Board of Osteopathic Medicine shall include 71 information relating to the five most misdiagnosed conditions 72 during the previous biennium, as determined by the board. If the 73 course is being offered by a facility licensed pursuant to 74 chapter 395 for its employees, the board may approve up to 1 75 hour of the 2-hour course to be specifically related to error 76 reduction and prevention methods used in that facility. 77 Section 2. The Division of Law Revision and Information is 78 directed to designate ss. 766.101-766.1185, Florida Statutes, as 79 part I of chapter 766, Florida Statutes, entitled “Medical 80 Malpractice and Related Matters”; ss. 766.201-766.212, Florida 81 Statutes, as part II of that chapter, entitled “Voluntary 82 Binding Arbitration”; ss. 766.301-766.316, Florida Statutes, as 83 part III of that chapter, entitled “Birth-Related Neurological 84 Injuries”; and ss. 766.401-766.410, Florida Statutes, as created 85 by this act, as part IV of that chapter, entitled “Patient 86 Compensation System.” 87 Section 3. Section 766.401, Florida Statutes, is created to 88 read: 89 766.401 Short title.—This part may be cited as the “Patient 90 Injury Act.” 91 Section 4. Section 766.402, Florida Statutes, is created to 92 read: 93 766.402 Definitions.—As used in this part, the term: 94 (1) “Applicant” means a person who files an application 95 under this part requesting the investigation of an alleged 96 occurrence of a medical injury. 97 (2) “Application” means a request for investigation by the 98 Patient Compensation System of an alleged occurrence of a 99 medical injury. 100 (3) “Board” means the Patient Compensation Board as created 101 in s. 766.404. 102 (4) “Collateral source” means any payment made to the 103 applicant, or made on his or her behalf, by or pursuant to: 104 (a) The federal Social Security Act; any federal, state, or 105 local income disability act; or any other public program 106 providing medical expenses, disability payments, or other 107 similar benefits, except as prohibited by federal law. 108 (b) Any health, sickness, or income disability insurance; 109 any automobile accident insurance that provides health benefits 110 or income disability coverage; and any other similar insurance 111 benefits, except life insurance benefits available to the 112 applicant, whether purchased by the applicant or provided by 113 others. 114 (c) Any contract or agreement of any group, organization, 115 partnership, or corporation to provide, pay for, or reimburse 116 the costs of hospital, medical, dental, or other health care 117 services. 118 (d) Any contractual or voluntary wage continuation plan 119 provided by employers or by any other system intended to provide 120 wages during a period of disability. 121 (5) “Committee” means, as the context requires, the Medical 122 Review Committee or the Compensation Committee. 123 (6) “Compensation schedule” means a schedule of damages for 124 medical injuries. 125 (7) “Department” means the Department of Health. 126 (8) “Independent medical review panel” or “panel” means a 127 multidisciplinary panel convened by the chief medical officer to 128 review each application. 129 (9)(a) “Medical injury” means a personal injury or wrongful 130 death due to medical treatment, including a missed diagnosis, 131 which injury or death could have been avoided for care provided 132 by: 133 1. An individual participating provider, under the care of 134 an experienced specialist provider practicing in the same field 135 of care under the same or similar circumstances or, for a 136 general practitioner provider, an experienced general 137 practitioner provider practicing under the same or similar 138 circumstances; or 139 2. A participating provider in a system of care, if such 140 care is rendered within an optimal system of care under the same 141 or similar circumstances. 142 (b) A medical injury only includes consideration of an 143 alternate course of treatment if the injury or death could have 144 been avoided through a different but equally effective manner of 145 treatment for the underlying condition. In addition, a medical 146 injury only includes consideration of information that would 147 have been known to an experienced specialist or readily 148 available to an optimal system of care at the time of the 149 medical treatment. 150 (c) For purposes of this subsection, the term “medical 151 injury” does not include an injury or wrongful death if the 152 medical treatment conformed with national practice standards for 153 the care and treatment of patients as determined by the 154 independent medical review panel. 155 (10) “Office” means, as the context requires, the Office of 156 Compensation, the Office of Medical Review, or the Office of 157 Quality Improvement. 158 (11) “Panelist” means an individual listed under the 159 definition of a provider. 160 (12) “Participating provider” means a provider who, at the 161 time of the medical injury, had paid the contribution required 162 for participation in the Patient Compensation System for the 163 year in which the medical injury occurred. 164 (13) “Patient Compensation System” means the organization 165 created in s. 766.404. 166 (14) “Provider” means a birth center licensed under chapter 167 383; a facility licensed under chapter 390, chapter 395, or 168 chapter 400; a home health agency or nurse registry licensed 169 under part III of chapter 400; a health care services pool 170 registered under part IX of chapter 400; a person licensed under 171 s. 401.27, chapter 457, chapter 458, chapter 459, chapter 460, 172 chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, 173 chapter 466, chapter 467, part I, part II, part III, part IV, 174 part V, part X, part XIII, or part XIV of chapter 468, chapter 175 478, part III of chapter 483, or chapter 486; a clinical 176 laboratory licensed under part I of chapter 483; a multiphasic 177 health testing center licensed under part II of chapter 483; a 178 health maintenance organization certificated under part I of 179 chapter 641; a blood bank; a plasma center; an industrial 180 clinic; a renal dialysis facility; or a professional association 181 partnership, corporation, joint venture, or other association 182 pertaining to the professional activity of health care 183 providers. 184 Section 5. Effective July 1, 2015, section 766.403, Florida 185 Statutes, is created to read: 186 766.403 Legislative findings and intent; exclusive remedy; 187 early offers; wrongful death.— 188 (1) LEGISLATIVE FINDINGS.—The Legislature finds that: 189 (a) The lack of legal representation, and, thus, 190 compensation, for the majority of patients with legitimate 191 medical injuries is creating an access-to-courts crisis. 192 (b) Seeking compensation through medical malpractice 193 litigation is a costly and protracted process, such that legal 194 counsel may only afford to finance a small number of legitimate 195 claims. 196 (c) Even for patients who are able to obtain legal 197 representation, the delay in obtaining compensation averages 5 198 years, creating a significant hardship for patients and their 199 caregivers who often need access to immediate care and 200 compensation. 201 (d) Because of continued exposure to liability, an 202 overwhelming majority of physicians practice defensive medicine 203 by ordering unnecessary tests and procedures, increasing the 204 cost of health care for individuals covered by public and 205 private health insurance coverage and exposing patients to 206 unnecessary clinical risks. 207 (e) A significant number of physicians intend to 208 discontinue providing services in this state as a result of the 209 cost and risk of medical liability, particularly obstetricians. 210 (f) Recruiting physicians to practice in this state and 211 ensuring that current physicians continue to practice in this 212 state is an overwhelming public necessity. 213 (2) LEGISLATIVE INTENT.—The Legislature intends: 214 (a) To supersede medical malpractice litigation by creating 215 a new remedy whereby patients are fairly and expeditiously 216 compensated for medical injuries. As provided in this part, this 217 alternative is intended to significantly reduce the practice of 218 defensive medicine, thereby reducing health care costs; increase 219 patient safety; increase the number of physicians practicing in 220 this state, and provide patients fair and timely compensation 221 without the expense and delay of the court system. The 222 Legislature intends that this part apply to all health care 223 facilities and health care providers who are either insured or 224 self-insured against claims for medical malpractice. 225 (b) That an application filed under this part not 226 constitute a claim for medical malpractice, any action on such 227 an application not constitute a judgment or adjudication for 228 medical malpractice, and, therefore, professional liability 229 carriers not be obligated to report such applications or actions 230 on such applications to the National Practitioner Data Bank. 231 (c) That the definition of the term “medical injury” be 232 construed to encompass a broader range of personal injuries as 233 compared to a negligence standard, such that a greater number of 234 applications qualify for compensation under this part as 235 compared to claims filed under a negligence standard. 236 (d) That, because the Patient Compensation System has the 237 primary duty to determine the validity and compensation of each 238 application, an insurer not be subject to a statutory or common 239 law bad faith cause of action relating to an application filed 240 under this part. 241 (3) EXCLUSIVE REMEDY.—Except as provided in part III, the 242 rights and remedies granted by this part due to a personal 243 injury or wrongful death exclude all other rights and remedies 244 of the applicant and his or her personal representative, 245 parents, dependents, and next of kin, at common law or as 246 provided in general law, against any participating provider 247 directly involved in providing the medical treatment resulting 248 in such injury or death, arising out of or related to a medical 249 negligence claim, whether in tort or in contract, with respect 250 to such injury. Notwithstanding any other law, this part applies 251 exclusively to applications submitted under this part. 252 (4) EARLY OFFER.—This part does not prohibit a self-insured 253 provider or an insurer from providing an early offer of 254 settlement or apology in satisfaction of a medical injury. A 255 person who accepts a settlement or apology offer may not file an 256 application under this part for the same medical injury. In 257 addition, if an application has been filed before the offer of 258 settlement, the acceptance of the settlement offer by the 259 applicant shall result in the withdrawal of the application. 260 (5) WRONGFUL DEATH.—Compensation shall not be provided 261 under this part for an application that requests an 262 investigation of an alleged wrongful death due to medical 263 treatment if such application is filed by an adult child on 264 behalf of his or her parent or by a parent on behalf of his or 265 her adult child. 266 Section 6. Section 766.404, Florida Statutes, is created to 267 read: 268 766.404 Patient Compensation System; board; committees.— 269 (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation 270 System is created and shall be administratively housed within 271 the department. The Patient Compensation System is a separate 272 budget entity that shall be responsible for its administrative 273 functions and is not subject to control, supervision, or 274 direction by the department in any manner. The Patient 275 Compensation System shall administer this part. 276 (2) PATIENT COMPENSATION BOARD.—The Patient Compensation 277 Board is a board of trustees as defined in s. 20.03 and is 278 established to govern the Patient Compensation System. The board 279 shall comply with the requirements of s. 20.052, except as 280 provided in this subsection. 281 (a) Members.—The board shall be composed of 11 members who 282 represent the medical, legal, patient, and business communities 283 from diverse geographic areas throughout the state. Members of 284 the board shall serve at the pleasure of the Governor and shall 285 be appointed by the Governor as follows: 286 1. Five members shall be appointed by the Governor, one of 287 whom shall be an allopathic or osteopathic physician who 288 actively practices in this state, one of whom shall be an 289 executive in the business community who works in this state, one 290 of whom shall be a hospital administrator who works in this 291 state, one of whom shall be a certified public accountant who 292 actively practices in this state, and one of whom shall be a 293 member of The Florida Bar who actively practices in this state. 294 2. Three of the members shall be persons who have been 295 selected by the Governor from a list of persons who were 296 recommended by the President of the Senate, one of whom shall be 297 an allopathic or osteopathic physician who actively practices in 298 this state and one of whom shall be a patient advocate who 299 resides in this state. 300 3. Three of the members shall be persons who have been 301 selected by the Governor from a list of persons who were 302 recommended by the Speaker of the House of Representatives, one 303 of whom shall be an allopathic or osteopathic physician who 304 actively practices in this state and one of whom shall be a 305 patient advocate who resides in this state. 306 (b) Terms of appointment.—Each member shall be appointed 307 for a 4-year term. For the purpose of providing staggered terms, 308 of the initial appointments, the five members appointed by the 309 Governor shall be appointed to 2-year terms and the remaining 310 six members shall be appointed to 3-year terms. If a vacancy 311 occurs on the board before the expiration of a term, the 312 Governor shall appoint a successor to serve the remainder of the 313 term. 314 (c) Chair and vice chair.—The board shall annually elect 315 from its membership one member to serve as chair of the board 316 and one member to serve as vice chair. 317 (d) Meetings.—The first meeting of the board shall be held 318 no later than August 1, 2014. Thereafter, the board shall meet 319 at least quarterly upon the call of the chair. A majority of the 320 board members constitutes a quorum. Meetings may be held by 321 teleconference, web conference, or other electronic means. 322 (e) Compensation.—Members of the board shall serve without 323 compensation but may be reimbursed for per diem and travel 324 expenses for required attendance at board meetings in accordance 325 with s. 112.061. 326 (f) Powers and duties of the board.—The board shall have 327 the following powers and duties: 328 1. Ensuring the operation of the Patient Compensation 329 System in accordance with applicable federal and state laws, 330 rules, and regulations. 331 2. Entering into contracts as necessary to administer this 332 part. 333 3. Employing an executive director and other staff as 334 necessary to perform the functions of the Patient Compensation 335 System, except that the Governor shall appoint the initial 336 executive director. 337 4. Approving the hiring of a chief compensation officer and 338 chief medical officer, as recommended by the executive director. 339 5. Approving a schedule of compensation for medical 340 injuries, as recommended by the Compensation Committee. 341 6. Approving medical review panelists as recommended by the 342 Medical Review Committee. 343 7. Approving an annual budget. 344 8. Annually approving provider contribution amounts. 345 (g) Powers and duties of staff.—The executive director 346 shall oversee the operation of the Patient Compensation System 347 in accordance with this part. The following staff shall report 348 directly to and serve at the pleasure of the executive director: 349 1. Advocacy director.—The advocacy director shall ensure 350 that each applicant is provided high-quality individual 351 assistance throughout the process, from initial filing to 352 disposition of the application. The advocacy director shall 353 assist each applicant in determining whether to retain an 354 attorney, which assistance shall include an explanation of 355 possible fee arrangements and the advantages and disadvantages 356 of retaining an attorney. If the applicant seeks to file an 357 application without an attorney, the advocacy director shall 358 assist the applicant in filing the application. In addition, the 359 advocacy director shall regularly provide status reports to the 360 applicant regarding his or her application. 361 2. Chief compensation officer.—The chief compensation 362 officer shall manage the Office of Compensation. The chief 363 compensation officer shall recommend to the Compensation 364 Committee a compensation schedule for each type of medical 365 injury. The chief compensation officer may not be a licensed 366 physician or an attorney. 367 3. Chief financial officer.—The chief financial officer 368 shall be responsible for overseeing the financial operations of 369 the Patient Compensation System, including the annual 370 development of a budget. 371 4. Chief legal officer.—The chief legal officer shall 372 represent the Patient Compensation System in all contested 373 applications, oversee the operation of the Patient Compensation 374 System to ensure compliance with established procedures, and 375 ensure adherence to all applicable federal and state laws, 376 rules, and regulations. 377 5. Chief medical officer.—The chief medical officer must be 378 a physician licensed under chapter 458 or chapter 459 and shall 379 manage the Office of Medical Review. The chief medical officer 380 shall recommend to the Medical Review Committee a qualified list 381 of multidisciplinary panelists for independent medical review 382 panels. In addition, the chief medical officer shall convene 383 independent medical review panels as necessary to review 384 applications. 385 6. Chief quality officer.—The chief quality officer shall 386 manage the Office of Quality Improvement. 387 (3) OFFICES.—The following offices are established within 388 the Patient Compensation System: 389 (a) Office of Medical Review.—The Office of Medical Review 390 shall evaluate and, as necessary, investigate all applications 391 in accordance with this part. For the purpose of an 392 investigation of an application, the office shall have the power 393 to administer oaths, take depositions, issue subpoenas, compel 394 the attendance of witnesses and the production of papers, 395 documents, and other evidence, and obtain patient records 396 pursuant to the applicant’s release of protected health 397 information. 398 (b) Office of Compensation.—The Office of Compensation 399 shall allocate compensation for each application in accordance 400 with the compensation schedule. 401 (c) Office of Quality Improvement.—The Office of Quality 402 Improvement shall regularly review application data to conduct 403 root cause analyses and develop and disseminate best practices 404 based on such reviews. In addition, the office shall capture and 405 record safety-related data obtained during an investigation 406 conducted by the Office of Medical Review, including the cause 407 of, the factors contributing to, and any interventions that may 408 have prevented the medical injury. 409 (4) COMMITTEES.—The board shall create a Medical Review 410 Committee and a Compensation Committee. The board may create 411 additional committees as necessary to assist in the performance 412 of its duties and responsibilities. 413 (a) Members.—Each committee shall be composed of three 414 board members chosen by a majority vote of the board. 415 1. The Medical Review Committee shall be composed of two 416 physicians who are licensed in this state and a board member who 417 is not an attorney who resides in this state. The board shall 418 designate a physician committee member as chair of the 419 committee. 420 2. The Compensation Committee shall be composed of a 421 certified public accountant who practices in this state and two 422 board members who are not physicians or attorneys who reside in 423 this state. The certified public accountant shall serve as chair 424 of the committee. 425 (b) Terms of appointment.—Members of each committee shall 426 serve 2-year terms concurrent with their respective terms as 427 board members. If a vacancy occurs on a committee, the board 428 shall appoint a successor to serve the remainder of the term. A 429 committee member who is removed or resigns from the board shall 430 be removed from the committee. 431 (c) Chair and vice chair.—The board shall annually 432 designate a chair and vice chair of each committee. 433 (d) Meetings.—Each committee shall meet at least quarterly 434 or at the specific direction of the board. Meetings may be held 435 by teleconference, web conference, or other electronic means. 436 (e) Compensation.—Members of the committees shall serve 437 without compensation but may be reimbursed for per diem and 438 travel expenses for required attendance at committee meetings in 439 accordance with s. 112.061. 440 (f) Powers and duties.— 441 1. The Medical Review Committee shall recommend to the 442 board a comprehensive, multidisciplinary list of panelists who 443 shall serve on the independent medical review panels as needed. 444 2. The Compensation Committee shall, in consultation with 445 the chief compensation officer, recommend to the board: 446 a. A compensation schedule, formulated such that the 447 aggregate cost of medical malpractice and the aggregate of 448 provider contributions are equal to or less than the prior 449 fiscal year’s aggregate cost of medical malpractice. In 450 addition, damage payments for each injury shall be no less than 451 the average indemnity payment reported by the Physician Insurers 452 Association of America or its successor organization for similar 453 medical injuries with similar severity. Thereafter, the 454 committee shall annually review the compensation schedule and, 455 if necessary, recommend a revised schedule, such that a 456 projected increase in the upcoming fiscal year’s aggregate cost 457 of medical malpractice, including insured and self-insured 458 providers, does not exceed the percentage change from the prior 459 year in the medical care component of the Consumer Price Index 460 for All Urban Consumers. 461 b. Guidelines for the payment of compensation awards 462 through periodic payments. 463 c. Guidelines for the apportionment of compensation among 464 multiple providers, which guidelines shall be based on the 465 historical apportionment among multiple providers for similar 466 injuries with similar severity. 467 (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical 468 officer shall convene an independent medical review panel to 469 evaluate each application to determine whether a medical injury 470 occurred. Each panel shall be composed of an odd number of at 471 least three panelists chosen from a list of panelists that 472 represent the same or similar specialty as the provider shall 473 convene, either in person or by teleconference, upon the call of 474 the chief medical officer. Each panelist shall be paid a stipend 475 as determined by the board for his or her service on the panel. 476 In order to expedite the review of applications, the chief 477 medical officer may, whenever practicable, group related 478 applications together for consideration by a single panel. 479 (6) CONFLICTS OF INTEREST.—A board member, panelist, or 480 employee of the Patient Compensation System may not engage in 481 any conduct that constitutes a conflict of interest. For 482 purposes of this subsection, the term “conflict of interest” 483 means a situation in which the private interest of a board 484 member, panelist, or employee could influence his or her 485 judgment in the performance of his or her duties under this 486 part. A board member, panelist, or employee shall immediately 487 disclose in writing the presence of a conflict of interest when 488 the board member, panelist, or employee knows or should 489 reasonably have known that the factual circumstances surrounding 490 a particular application constitute or constituted a conflict of 491 interest. A board member, panelist, or employee who violates 492 this subsection is subject to disciplinary action as determined 493 by the board. A conflict of interest includes, but is not 494 limited to: 495 (a) Conduct that would lead a reasonable person having 496 knowledge of all of the circumstances to conclude that a board 497 member, panelist, or employee is biased against or in favor of 498 an applicant. 499 (b) Participation in an application in which the board 500 member, panelist, or employee, or the parent, spouse, or child 501 of a board member, panelist, or employee, has a financial 502 interest. 503 (7) RULEMAKING.—The board shall adopt rules to implement 504 and administer this part, including rules addressing: 505 (a) The application process, including forms necessary to 506 collect relevant information from applicants. 507 (b) Disciplinary procedures for a board member, panelist, 508 or employee who violates the conflict of interest provisions of 509 this part. 510 (c) Stipends paid to panelists for their service on an 511 independent medical review panel, which stipends may be scaled 512 in accordance with the relative scarcity of the provider’s 513 specialty, if applicable. 514 (d) Payment of compensation awards through periodic 515 payments and the apportionment of compensation among multiple 516 providers, as recommended by the Compensation Committee. 517 (e) The opt-out process for providers who do not want to 518 participate in the Patient Compensation System. 519 Section 7. Effective July 1, 2015, section 766.405, Florida 520 Statutes, is created to read: 521 766.405 Filing of applications.— 522 (1) CONTENT.—In order to obtain compensation for a medical 523 injury, an applicant, or his or her legal representative, shall 524 file an application with the Patient Compensation System. The 525 application shall include the following: 526 (a) The name and address of the applicant or his or her 527 legal representative and the basis of the representation. 528 (b) The name and address of any participating provider who 529 provided medical treatment allegedly resulting in the medical 530 injury. 531 (c) A brief statement of the facts and circumstances 532 surrounding the medical injury that gave rise to the 533 application. 534 (d) An authorization for release to the Office of Medical 535 Review of all protected health information that is potentially 536 relevant to the application. 537 (e) Any other information that the applicant believes will 538 be beneficial to the investigatory process, including the names 539 of potential witnesses. 540 (f) Documentation of any applicable private or governmental 541 source of services or reimbursement relative to the medical 542 injury. 543 (2) INCOMPLETE APPLICATIONS.—If an application is not 544 complete, the Patient Compensation System shall, within 30 days 545 after the receipt of the initial application, notify the 546 applicant in writing of any errors or omissions. An applicant 547 shall have 30 days after receipt of the notice in which to 548 correct the errors or omissions in the initial application. 549 (3) TIME LIMITATION ON APPLICATIONS.—An application shall 550 be filed within the time periods specified in s. 95.11(4) for 551 medical malpractice actions. The applicable time period shall be 552 tolled from the date an application is filed until the date the 553 applicant receives the results of the initial medical review 554 under s. 766.406. 555 (4) SUPPLEMENTAL INFORMATION.—After the filing of an 556 application, the applicant may supplement the initial 557 application with additional information that the applicant 558 believes may be beneficial in the resolution of the application. 559 (5) LEGAL COUNSEL.—This part does not prohibit an applicant 560 or participating provider from retaining an attorney to 561 represent the applicant or participating provider in the review 562 and resolution of an application. 563 Section 8. Effective July 1, 2015, section 766.406, Florida 564 Statutes, is created to read: 565 766.406 Disposition of applications.— 566 (1) INITIAL MEDICAL REVIEW.—Individuals with relevant 567 clinical expertise in the Office of Medical Review shall, within 568 10 days after the receipt of a completed application, determine 569 whether the application, prima facie, constitutes a medical 570 injury. 571 (a) If the Office of Medical Review determines that the 572 application, prima facie, constitutes a medical injury, the 573 office shall immediately notify, by registered or certified 574 mail, each participating provider named in the application and, 575 for participating providers that are not self-insured, the 576 insurer that provides coverage for the provider. The 577 notification shall inform the participating provider that he or 578 she may support the application to expedite the processing of 579 the application. A participating provider shall have 15 days 580 after the receipt of notification of an application to support 581 the application. If the participating provider supports the 582 application, the Office of Medical Review shall review the 583 application in accordance with subsection (2). 584 (b) If the Office of Medical Review determines that the 585 application does not, prima facie, constitute a medical injury, 586 the office shall send a rejection letter to the applicant by 587 registered or certified mail informing the applicant of his or 588 her right of appeal. The applicant shall have 15 days after the 589 receipt of the letter in which to appeal the determination of 590 the office pursuant to s. 766.407. 591 (2) EXPEDITED MEDICAL REVIEW.—An application that is 592 supported by a participating provider in accordance with 593 subsection (1) shall be reviewed by individuals with relevant 594 clinical expertise in the Office of Medical Review within 30 595 days after notification of the participating provider’s support 596 of the application to determine the validity of the application. 597 If the Office of Medical Review finds that the application is 598 valid, the Office of Compensation shall determine an award of 599 compensation in accordance with subsection (4). If the Office of 600 Medical Review finds that the application is not valid, the 601 office shall immediately notify the applicant of the rejection 602 of the application and, in the case of fraud, shall immediately 603 notify relevant law enforcement authorities. 604 (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review 605 determines that the application, prima facie, constitutes a 606 medical injury and the participating provider does not elect to 607 support the application, the office shall complete a thorough 608 investigation of the application within 60 days after the 609 determination by the office. The investigation shall be 610 conducted by a multidisciplinary team with relevant clinical 611 expertise and shall include a thorough investigation of all 612 available documentation, witnesses, and other information. 613 Within 15 days after the completion of the investigation, the 614 chief medical officer shall allow the applicant and the 615 participating provider to access records, statements, and other 616 information obtained in the course of its investigation, in 617 accordance with relevant state and federal laws. 618 (a) Within 30 days after the completion of the 619 investigation, the chief medical officer shall convene an 620 independent medical review panel to determine whether the 621 application constitutes a medical injury. The independent 622 medical review panel shall have access to all redacted 623 information obtained by the office in the course of its 624 investigation of the application and shall make a written 625 determination within 10 days after the convening of the panel, 626 which written determination shall be immediately provided to the 627 applicant and the participating provider. 628 (b) If the independent medical review panel determines 629 that: 630 1. The medical intervention conformed to national practice 631 standards for the care and treatment of patients, then the 632 application shall be dismissed and the provider shall not be 633 held responsible for the patient’s medical injury. 634 2. All of the following criteria exist by a preponderance 635 of the evidence, then the panel shall report that the 636 application constitutes a medical injury: 637 a. The provider performed a medical service on the 638 applicant. 639 b. The applicant suffered damages. 640 c. The medical service was the proximate cause of the 641 damages. 642 d. One or more of the following, as determined in 643 accordance with subsection (9) of section 766.402: 644 (I) An accepted method of medical services was not used for 645 treatment. 646 (II) An accepted method of medical services was used for 647 treatment, but executed in a substandard fashion. 648 (III) An accepted method was used, but evaluated by a 649 prospective analysis, damages could have been avoided by using a 650 less hazardous, but equally effective, treatment. 651 (c) If the independent medical review panel determines that 652 the application constitutes a medical injury, the Office of 653 Medical Review shall immediately notify the participating 654 provider by registered or certified mail of the right to appeal 655 the determination of the panel. The participating provider shall 656 have 15 days after the receipt of the letter in which to appeal 657 the determination of the panel pursuant to s. 766.407. 658 (d) If the independent medical review panel determines that 659 the application does not constitute a medical injury, the Office 660 of Medical Review shall immediately notify the applicant by 661 registered or certified mail of the right to appeal the 662 determination of the panel. The applicant shall have 15 days 663 from the receipt of the letter to appeal the determination of 664 the panel pursuant to s. 766.407. 665 (4) COMPENSATION REVIEW.—If an independent medical review 666 panel finds that an application constitutes a medical injury 667 under subsection (3) and all appeals of that finding have been 668 exhausted by the participating provider pursuant to s. 766.407, 669 the Office of Compensation shall, within 30 days after either 670 the finding of the panel or the exhaustion of all appeals of 671 that finding, whichever occurs later, make a written 672 determination of an award of compensation in accordance with the 673 compensation schedule and the findings of the panel. The office 674 shall notify the applicant and the participating provider by 675 registered or certified mail of the amount of compensation and 676 shall also explain to the applicant the process to appeal the 677 determination of the office. The applicant shall have 15 days 678 from the receipt of the letter to appeal the determination of 679 the office pursuant to s. 766.407. 680 (5) LIMITATION ON COMPENSATION.—Compensation for each 681 application shall be offset by any past and future collateral 682 source payments. In addition, compensation may be paid by 683 periodic payments as determined by the Office of Compensation in 684 accordance with rules adopted by the board. 685 (6) PAYMENT OF COMPENSATION.—Within 14 days after either 686 the acceptance of compensation by the applicant or the 687 conclusion of all appeals pursuant to s. 766.407, the 688 participating provider, or the insurer for a participating 689 provider who has insurance coverage, shall remit the 690 compensation award to the Patient Compensation System, which 691 shall immediately provide compensation to the applicant in 692 accordance with the final compensation award. Beginning 45 days 693 after the acceptance of compensation by the applicant or the 694 conclusion of all appeals pursuant to s. 766.407, whichever 695 occurs later, an unpaid award shall begin to accrue interest at 696 the rate of 18 percent per year. 697 (7) DETERMINATION OF MEDICAL MALPRACTICE.—For purposes of 698 s. 26, Art. X of the State Constitution, a physician who is the 699 subject of an application under this part must be found to have 700 committed medical malpractice only upon a specific finding of 701 the Board of Medicine or Board of Osteopathic Medicine, as 702 applicable, in accordance with s. 456.50. 703 (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation 704 System shall provide the department with electronic access to 705 applications for which a medical injury was determined to exist, 706 related to persons licensed under chapter 458, chapter 459, 707 chapter 460, part I of chapter 464, or chapter 466, where the 708 provider represents an imminent risk of harm to the public. The 709 department shall review such applications to determine whether 710 any of the incidents that resulted in the application 711 potentially involved conduct by the licensee that is subject to 712 disciplinary action, in which case s. 456.073 applies. 713 Section 9. Effective July 1, 2015, section 766.407, Florida 714 Statutes, is created to read: 715 766.407 Review by administrative law judge; appellate 716 review; extensions of time.— 717 (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative 718 law judge shall hear and determine appeals filed pursuant to s. 719 766.406 and shall exercise the full power and authority granted 720 to him or her in chapter 120, as necessary, to carry out the 721 purposes of that section. The administrative law judge shall be 722 limited in his or her review to determining whether the Office 723 of Medical Review, the independent medical review panel, or the 724 Office of Compensation, as appropriate, has faithfully followed 725 the requirements of this part and rules adopted thereunder in 726 reviewing applications. If the administrative law judge 727 determines that such requirements were not followed in reviewing 728 an application, he or she shall require the chief medical 729 officer to either reconvene the original panel or convene a new 730 panel, or require the Office of Compensation to redetermine the 731 compensation amount, in accordance with the determination of the 732 judge. 733 (2) APPELLATE REVIEW.—A determination by an administrative 734 law judge under this section regarding the award or denial of 735 compensation under this part shall be conclusive and binding as 736 to all questions of fact and shall be provided to the applicant 737 and the participating provider. An applicant may appeal the 738 award or denial of compensation to the District Court of Appeal. 739 Appeals shall be filed in accordance with rules of procedure 740 adopted by the Supreme Court for review of such orders. 741 (3) EXTENSIONS OF TIME.—Upon a written petition by either 742 the applicant or the participating provider, an administrative 743 law judge may grant, for good cause, an extension of any of the 744 time periods specified in this part. The relevant time period 745 shall be tolled from the date of the written petition until the 746 date the administrative law judge issues a determination. 747 Section 10. Effective July 1, 2015, section 766.408, 748 Florida Statutes, is created to read: 749 766.408 Expenses of administration; opt out.— 750 (1) The board shall annually determine a contribution that 751 shall be paid by each provider, unless the provider opts out of 752 participation in the Patient Compensation System pursuant to 753 subsection (6). The contribution amount shall be determined by 754 January 1 of each year and shall be based on the anticipated 755 expenses of the administration of this part for the next state 756 fiscal year. 757 (2) The contribution rate may not exceed the following 758 amounts: 759 (a) For an individual licensed under s. 401.27, a 760 chiropractic assistant licensed under chapter 460, or an 761 individual licensed under chapter 461, chapter 462, chapter 463, 762 chapter 464 with the exception of a certified registered nurse 763 anesthetist, chapter 465, chapter 466, chapter 467, part I, part 764 II, part III, part IV, part V, part X, part XIII, or part XIV of 765 chapter 468, chapter 478, part III of chapter 483, or chapter 766 486, $100 per licensee. 767 (b) For an anesthesiology assistant or physician assistant 768 licensed under chapter 458 or chapter 459 or a certified 769 registered nurse anesthetist certified under part I of chapter 770 464, $250 per licensee. 771 (c) For a physician licensed under chapter 458, chapter 772 459, or chapter 460, $600 per licensee. The contribution for the 773 initial fiscal year shall be $500 per licensee. 774 (d) For a facility licensed under part II of chapter 400, 775 $100 per bed. 776 (e) For a facility licensed under chapter 395, $200 per 777 bed, except that the contribution for the initial fiscal year 778 shall be $100 per bed. 779 (f) For any other provider not otherwise described in this 780 subsection, $2,500 per registrant or licensee. 781 (3) The contribution determined under this section shall be 782 payable by each participating provider upon notice delivered on 783 or after July 1 of the next state fiscal year. Each 784 participating provider shall pay the contribution amount within 785 30 days after the date the notice is delivered to the provider. 786 If a provider fails to pay the contribution determined under 787 this section within 30 days after such notice, the board shall 788 notify the provider by certified or registered mail that the 789 provider’s license shall be subject to revocation if the 790 contribution is not paid within 60 days from the date of the 791 original notice. 792 (4) A provider that has not opted out of participation 793 pursuant to subsection (6) who fails to pay the contribution 794 amount determined under this section within 60 days after 795 receipt of the original notice shall be subject to a licensure 796 revocation action by the department, the Agency for Health Care 797 Administration, or the relevant regulatory board, as applicable. 798 (5) All amounts collected under this section shall be paid 799 into the Patient Compensation Trust Fund established in s. 800 766.4105. 801 (6) A provider may elect to opt out of participation in the 802 Patient Compensation System. The election to opt out must be 803 made in writing no later than 15 days before the due date of the 804 contribution required under this section. A provider who opts 805 out may subsequently elect to participate by paying the 806 appropriate contribution amount for the current fiscal year. 807 Section 11. Section 766.409, Florida Statutes, is created 808 to read: 809 766.409 Notice to patients of participation in the Patient 810 Compensation System.— 811 (1) Each participating provider shall provide notice to 812 patients that the provider is participating in the Patient 813 Compensation System. Such notice shall be provided on a form 814 furnished by the Patient Compensation System and shall include a 815 concise explanation of a patient’s rights and benefits under the 816 system. 817 (2) Notice is not required to be given to a patient when 818 the patient has an emergency medical condition as defined in s. 819 395.002(8)(b) or when notice is not practicable. 820 Section 12. Section 766.410, Florida Statutes, is created 821 to read: 822 766.410 Annual report.—The board shall annually, beginning 823 on October 1, 2015, submit to the Governor, the President of the 824 Senate, and the Speaker of the House of Representatives a report 825 that describes the filing and disposition of applications in the 826 preceding fiscal year. The report shall include, in the 827 aggregate, the number of applications, the disposition of such 828 applications, and the compensation awarded. 829 Section 13. This act applies to medical incidents for which 830 a notice of intent to initiate litigation has not been mailed 831 before July 1, 2015. 832 Section 14. If any provision of this act or its application 833 to any person or circumstance is held invalid, the invalidity 834 does not affect other provisions or applications of the act 835 which may be given effect without the invalid provision or 836 application, and to this end the provisions of this act are 837 severable. 838 Section 15. Except as otherwise expressly provided in this 839 act, this act shall take effect July 1, 2014.