Bill Text: FL S1590 | 2011 | Regular Session | Engrossed


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-Engrossed.html
       CS for SB 1590                                   First Engrossed
       
       
       
       
       
       
       
       
       20111590e1
       
    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         requiring that certain expert witnesses who provide
   35         certain expert testimony meet certain licensure or
   36         certification requirements; excluding a health care
   37         provider’s failure to comply with or breach of federal
   38         requirements from evidence in medical negligence cases
   39         in the state; amending s. 766.106, F.S.; requiring
   40         claimants for medical malpractice to execute an
   41         authorization form; authorizing prospective defendants
   42         to take unsworn statements of a claimant’s health care
   43         provider; creating s. 766.1065, F.S.; requiring that
   44         presuit notice for medical negligence claims be
   45         accompanied by an authorization for release of
   46         protected health information; providing requirements
   47         for the form of such authorization; amending s.
   48         766.206, F.S.; requiring dismissal of a medical
   49         malpractice claim if such authorization is not
   50         completed in good faith; amending s. 768.135, F.S.;
   51         defining the term “volunteer team physician”;
   52         providing that a volunteer team physician is not
   53         liable for civil damages unless treatment was rendered
   54         in a wrongful manner; providing that certain
   55         practitioners who conduct certain evaluations are not
   56         liable for civil damages unless the evaluation was
   57         conducted in a wrongful manner; defining the term
   58         “wrongful manner”; providing an effective date.
   59  
   60  Be It Enacted by the Legislature of the State of Florida:
   61  
   62         Section 1. Section 458.3175, Florida Statutes, is created
   63  to read:
   64         458.3175 Expert witness certificate.—
   65         (1)(a) The department shall issue a certificate authorizing
   66  a physician who holds an active and valid license to practice
   67  medicine in another state or a province of Canada to provide
   68  expert testimony in this state, if the physician submits to the
   69  department:
   70         1. A complete registration application containing the
   71  physician’s legal name, mailing address, telephone number,
   72  business locations, the names of the jurisdictions where the
   73  physician holds an active and valid license to practice
   74  medicine, and the license number or other identifying number
   75  issued to the physician by the jurisdiction’s licensing entity;
   76  and
   77         2. An application fee of $50.
   78         (b) The department shall approve an application for an
   79  expert witness certificate within 10 business days after receipt
   80  of the completed application and payment of the application fee
   81  if the applicant holds an active and valid license to practice
   82  medicine in another state or a province of Canada and has not
   83  had a previous expert witness certificate revoked by the board.
   84  An application is approved by default if the department does not
   85  act upon the application within the required period. A physician
   86  must notify the department in writing of his or her intent to
   87  rely on a certificate approved by default.
   88         (c) An expert witness certificate is valid for 2 years
   89  after the date of issuance.
   90         (2) An expert witness certificate authorizes the physician
   91  to whom the certificate is issued to do only the following:
   92         (a) Provide a verified written medical expert opinion as
   93  provided in s. 766.203.
   94         (b) Provide expert testimony about the prevailing
   95  professional standard of care in connection with medical
   96  negligence litigation pending in this state against a physician
   97  licensed under this chapter or chapter 459.
   98         (3) An expert witness certificate does not authorize a
   99  physician to engage in the practice of medicine as defined in s.
  100  458.305. A physician issued a certificate under this section who
  101  does not otherwise practice medicine in this state is not
  102  required to obtain a license under this chapter or pay any
  103  license fees, including, but not limited to, a neurological
  104  injury compensation assessment. An expert witness certificate
  105  shall be treated as a license in any disciplinary action, and
  106  the holder of an expert witness certificate shall be subject to
  107  discipline by the board.
  108         Section 2. Subsection (11) is added to section 458.331,
  109  Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
  110  of that section are redesignated as paragraphs (pp) through
  111  (rr), respectively, and a new paragraph (oo) is added to that
  112  subsection, to read:
  113         458.331 Grounds for disciplinary action; action by the
  114  board and department.—
  115         (1) The following acts constitute grounds for denial of a
  116  license or disciplinary action, as specified in s. 456.072(2):
  117         (oo) Providing deceptive or fraudulent expert witness
  118  testimony related to the practice of medicine.
  119         (11) The purpose of this section is to facilitate uniform
  120  discipline for those acts made punishable under this section
  121  and, to this end, a reference to this section constitutes a
  122  general reference under the doctrine of incorporation by
  123  reference.
  124         Section 3. Subsection (6) of section 458.351, Florida
  125  Statutes, is renumbered as subsection (7), and a new subsection
  126  (6) is added to that section to read:
  127         458.351 Reports of adverse incidents in office practice
  128  settings.—
  129         (6)(a) The board shall adopt rules establishing a standard
  130  informed consent form that sets forth the recognized specific
  131  risks related to cataract surgery. The board must propose such
  132  rules within 90 days after the effective date of this
  133  subsection.
  134         (b) Before formally proposing the rule, the board must
  135  consider information from physicians licensed under this chapter
  136  or chapter 459 regarding recognized specific risks related to
  137  cataract surgery and the standard informed consent forms adopted
  138  for use in the medical field by other states.
  139         (c) A patient’s informed consent is not executed until the
  140  patient, or a person authorized by the patient to give consent,
  141  and a competent witness sign the form adopted by the board.
  142         (d) An incident resulting from recognized specific risks
  143  described in the signed consent form is not considered an
  144  adverse incident for purposes of s. 395.0197 and this section.
  145         (e) In a civil action or administrative proceeding against
  146  a physician based on his or her alleged failure to properly
  147  disclose the risks of cataract surgery, a patient’s informed
  148  consent executed as provided in paragraph (c) on the form
  149  adopted by the board is admissible as evidence and creates a
  150  rebuttable presumption that the physician properly disclosed the
  151  risks.
  152         Section 4. Section 459.0066, Florida Statutes, is created
  153  to read:
  154         459.0066 Expert witness certificate.—
  155         (1)(a) The department shall issue a certificate authorizing
  156  a physician who holds an active and valid license to practice
  157  osteopathic medicine in another state or a province of Canada to
  158  provide expert testimony in this state, if the physician submits
  159  to the department:
  160         1. A complete registration application containing the
  161  physician’s legal name, mailing address, telephone number,
  162  business locations, the names of the jurisdictions where the
  163  physician holds an active and valid license to practice
  164  osteopathic medicine, and the license number or other
  165  identifying number issued to the physician by the jurisdiction’s
  166  licensing entity; and
  167         2. An application fee of $50.
  168         (b) The department shall approve an application for an
  169  expert witness certificate within 10 business days after receipt
  170  of the completed application and payment of the application fee
  171  if the applicant holds an active and valid license to practice
  172  osteopathic medicine in another state or a province of Canada
  173  and has not had a previous expert witness certificate revoked by
  174  the board. An application is approved by default if the
  175  department does not act upon the application within the required
  176  period. A physician must notify the department in writing of his
  177  or her intent to rely on a certificate approved by default.
  178         (c) An expert witness certificate is valid for 2 years
  179  after the date of issuance.
  180         (2) An expert witness certificate authorizes the physician
  181  to whom the certificate is issued to do only the following:
  182         (a) Provide a verified written medical expert opinion as
  183  provided in s. 766.203.
  184         (b) Provide expert testimony about the prevailing
  185  professional standard of care in connection with medical
  186  negligence litigation pending in this state against a physician
  187  licensed under chapter 458 or this chapter.
  188         (3) An expert witness certificate does not authorize a
  189  physician to engage in the practice of osteopathic medicine as
  190  defined in s. 459.003. A physician issued a certificate under
  191  this section who does not otherwise practice osteopathic
  192  medicine in this state is not required to obtain a license under
  193  this chapter or pay any license fees, including, but not limited
  194  to, a neurological injury compensation assessment. An expert
  195  witness certificate shall be treated as a license in any
  196  disciplinary action, and the holder of an expert witness
  197  certificate shall be subject to discipline by the board.
  198         Section 5. Subsection (11) is added to section 459.015,
  199  Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
  200  of that section are redesignated as paragraphs (rr) through
  201  (tt), respectively, and a new paragraph (qq) is added to that
  202  subsection, to read:
  203         459.015 Grounds for disciplinary action; action by the
  204  board and department.—
  205         (1) The following acts constitute grounds for denial of a
  206  license or disciplinary action, as specified in s. 456.072(2):
  207         (qq) Providing deceptive or fraudulent expert witness
  208  testimony related to the practice of osteopathic medicine.
  209         (11) The purpose of this section is to facilitate uniform
  210  discipline for those acts made punishable under this section
  211  and, to this end, a reference to this section constitutes a
  212  general reference under the doctrine of incorporation by
  213  reference.
  214         Section 6. Section 466.005, Florida Statutes, is created to
  215  read:
  216         466.005 Expert witness certificate.—
  217         (1)(a) The department shall issue a certificate authorizing
  218  a dentist who holds an active and valid license to practice
  219  dentistry in another state or a province of Canada to provide
  220  expert testimony in this state, if the dentist submits to the
  221  department:
  222         1. A complete registration application containing the
  223  dentist’s legal name, mailing address, telephone number,
  224  business locations, the names of the jurisdictions where the
  225  dentist holds an active and valid license to practice dentistry,
  226  and the license number or other identifying number issued to the
  227  dentist by the jurisdiction’s licensing entity; and
  228         2. An application fee of $50.
  229         (b) The department shall approve an application for an
  230  expert witness certificate within 10 business days after receipt
  231  of the completed application and payment of the application fee
  232  if the applicant holds an active and valid license to practice
  233  dentistry in another state or a province of Canada and has not
  234  had a previous expert witness certificate revoked by the board.
  235  An application is approved by default if the department does not
  236  act upon the application within the required period. A dentist
  237  must notify the department in writing of his or her intent to
  238  rely on a certificate approved by default.
  239         (c) An expert witness certificate is valid for 2 years
  240  after the date of issuance.
  241         (2) An expert witness certificate authorizes the dentist to
  242  whom the certificate is issued to do only the following:
  243         (a) Provide a verified written medical expert opinion as
  244  provided in s. 766.203.
  245         (b) Provide expert testimony about the prevailing
  246  professional standard of care in connection with medical
  247  negligence litigation pending in this state against a dentist
  248  licensed under this chapter.
  249         (3) An expert witness certificate does not authorize a
  250  dentist to engage in the practice of dentistry as defined in s.
  251  466.003. A dentist issued a certificate under this section who
  252  does not otherwise practice dentistry in this state is not
  253  required to obtain a license under this chapter or pay any
  254  license fees. An expert witness certificate shall be treated as
  255  a license in any disciplinary action, and the holder of an
  256  expert witness certificate shall be subject to discipline by the
  257  board.
  258         Section 7. Subsection (8) is added to section 466.028,
  259  Florida Statutes, paragraph (ll) of subsection (1) of that
  260  section is redesignated as paragraph (mm), and a new paragraph
  261  (ll) is added to that subsection, to read:
  262         466.028 Grounds for disciplinary action; action by the
  263  board.—
  264         (1) The following acts constitute grounds for denial of a
  265  license or disciplinary action, as specified in s. 456.072(2):
  266         (11) Providing deceptive or fraudulent expert witness
  267  testimony related to the practice of dentistry.
  268         (8) The purpose of this section is to facilitate uniform
  269  discipline for those acts made punishable under this section
  270  and, to this end, a reference to this section constitutes a
  271  general reference under the doctrine of incorporation by
  272  reference.
  273         Section 8. Subsection (6) of section 459.026, Florida
  274  Statutes, is renumbered as subsection (7), and a new subsection
  275  (6) is added to that section to read:
  276         459.026 Reports of adverse incidents in office practice
  277  settings.—
  278         (6)(a) The board shall adopt rules establishing a standard
  279  informed consent form that sets forth the recognized specific
  280  risks related to cataract surgery. The board must propose such
  281  rules within 90 days after the effective date of this
  282  subsection.
  283         (b) Before formally proposing the rule, the board must
  284  consider information from physicians licensed under chapter 458
  285  or this chapter regarding recognized specific risks related to
  286  cataract surgery and the standard informed consent forms adopted
  287  for use in the medical field by other states.
  288         (c) A patient’s informed consent is not executed until the
  289  patient, or a person authorized by the patient to give consent,
  290  and a competent witness sign the form adopted by the board.
  291         (d) An incident resulting from recognized specific risks
  292  described in the signed consent form is not considered an
  293  adverse incident for purposes of s. 395.0197 and this section.
  294         (e) In a civil action or administrative proceeding against
  295  a physician based on his or her alleged failure to properly
  296  disclose the risks of cataract surgery, a patient’s informed
  297  consent executed as provided in paragraph (c) on the form
  298  adopted by the board is admissible as evidence and creates a
  299  rebuttable presumption that the physician properly disclosed the
  300  risks.
  301         Section 9. Paragraph (b) of subsection (1) of section
  302  627.4147, Florida Statutes, is amended to read:
  303         627.4147 Medical malpractice insurance contracts.—
  304         (1) In addition to any other requirements imposed by law,
  305  each self-insurance policy as authorized under s. 627.357 or s.
  306  624.462 or insurance policy providing coverage for claims
  307  arising out of the rendering of, or the failure to render,
  308  medical care or services, including those of the Florida Medical
  309  Malpractice Joint Underwriting Association, shall include:
  310         (b)1. Except as provided in subparagraph 2., a clause
  311  authorizing the insurer or self-insurer to determine, to make,
  312  and to conclude, without the permission of the insured, any
  313  offer of admission of liability and for arbitration pursuant to
  314  s. 766.106, settlement offer, or offer of judgment, if the offer
  315  is within the policy limits. It is against public policy for any
  316  insurance or self-insurance policy to contain a clause giving
  317  the insured the exclusive right to veto any offer for admission
  318  of liability and for arbitration made pursuant to s. 766.106,
  319  settlement offer, or offer of judgment, when such offer is
  320  within the policy limits. However, any offer of admission of
  321  liability, settlement offer, or offer of judgment made by an
  322  insurer or self-insurer shall be made in good faith and in the
  323  best interests of the insured.
  324         2.a. With respect to dentists licensed under chapter 466, A
  325  clause clearly stating whether or not the insured has the
  326  exclusive right to veto any offer of admission of liability and
  327  for arbitration pursuant to s. 766.106, settlement offer, or
  328  offer of judgment if the offer is within policy limits. An
  329  insurer or self-insurer shall not make or conclude, without the
  330  permission of the insured, any offer of admission of liability
  331  and for arbitration pursuant to s. 766.106, settlement offer, or
  332  offer of judgment, if such offer is outside the policy limits.
  333  However, any offer for admission of liability and for
  334  arbitration made under s. 766.106, settlement offer, or offer of
  335  judgment made by an insurer or self-insurer shall be made in
  336  good faith and in the best interest of the insured.
  337         2.b. If the policy contains a clause stating the insured
  338  does not have the exclusive right to veto any offer or admission
  339  of liability and for arbitration made pursuant to s. 766.106,
  340  settlement offer or offer of judgment, the insurer or self
  341  insurer shall provide to the insured or the insured’s legal
  342  representative by certified mail, return receipt requested, a
  343  copy of the final offer of admission of liability and for
  344  arbitration made pursuant to s. 766.106, settlement offer or
  345  offer of judgment and at the same time such offer is provided to
  346  the claimant. A copy of any final agreement reached between the
  347  insurer and claimant shall also be provided to the insurer or
  348  his or her legal representative by certified mail, return
  349  receipt requested not more than 10 days after affecting such
  350  agreement.
  351         Section 10. Subsections (3), (4), and (5) of section
  352  766.102, Florida Statutes, are amended, subsection (12) of that
  353  section is renumbered as subsection (14), and new subsections
  354  (12) and (13) are added to that section, to read:
  355         766.102 Medical negligence; standards of recovery; expert
  356  witness.—
  357         (3)(a) As used in this subsection, the term:
  358         1. “Insurer” means any public or private insurer, including
  359  the Centers for Medicare and Medicaid Services.
  360         2. “Reimbursement determination” means an insurer’s
  361  determination of the amount that the insurer will reimburse a
  362  health care provider for health care services.
  363         3. “Reimbursement policies” means an insurer’s policies and
  364  procedures governing its decisions regarding health insurance
  365  coverage and method of payment and the data upon which such
  366  policies and procedures are based, including, but not limited
  367  to, data from national research groups and other patient safety
  368  data as defined in s. 766.1016.
  369         (b) The existence of a medical injury does shall not create
  370  any inference or presumption of negligence against a health care
  371  provider, and the claimant must maintain the burden of proving
  372  that an injury was proximately caused by a breach of the
  373  prevailing professional standard of care by the health care
  374  provider. Any records, policies, or testimony of an insurer’s
  375  reimbursement policies or reimbursement determination regarding
  376  the care provided to the plaintiff are not admissible as
  377  evidence in any medical negligence action. However, the
  378  discovery of the presence of a foreign body, such as a sponge,
  379  clamp, forceps, surgical needle, or other paraphernalia commonly
  380  used in surgical, examination, or diagnostic procedures, shall
  381  be prima facie evidence of negligence on the part of the health
  382  care provider.
  383         (4) The Legislature is cognizant of the changing trends and
  384  techniques for the delivery of health care in this state and the
  385  discretion that is inherent in the diagnosis, care, and
  386  treatment of patients by different health care providers. The
  387  failure of a health care provider to order, perform, or
  388  administer supplemental diagnostic tests is shall not be
  389  actionable if the health care provider acted in good faith and
  390  with due regard for the prevailing professional standard of
  391  care.
  392         (5) A person may not give expert testimony concerning the
  393  prevailing professional standard of care unless the that person
  394  is a licensed health care provider who holds an active and valid
  395  license and conducts a complete review of the pertinent medical
  396  records and meets the following criteria:
  397         (a) If the health care provider against whom or on whose
  398  behalf the testimony is offered is a specialist, the expert
  399  witness must:
  400         1. Specialize in the same specialty as the health care
  401  provider against whom or on whose behalf the testimony is
  402  offered; or specialize in a similar specialty that includes the
  403  evaluation, diagnosis, or treatment of the medical condition
  404  that is the subject of the claim and have prior experience
  405  treating similar patients; and
  406         2. Have devoted professional time during the 3 years
  407  immediately preceding the date of the occurrence that is the
  408  basis for the action to:
  409         a. The active clinical practice of, or consulting with
  410  respect to, the same or similar specialty that includes the
  411  evaluation, diagnosis, or treatment of the medical condition
  412  that is the subject of the claim and have prior experience
  413  treating similar patients;
  414         b. Instruction of students in an accredited health
  415  professional school or accredited residency or clinical research
  416  program in the same or similar specialty; or
  417         c. A clinical research program that is affiliated with an
  418  accredited health professional school or accredited residency or
  419  clinical research program in the same or similar specialty.
  420         (b) If the health care provider against whom or on whose
  421  behalf the testimony is offered is a general practitioner, the
  422  expert witness must have devoted professional time during the 5
  423  years immediately preceding the date of the occurrence that is
  424  the basis for the action to:
  425         1. The active clinical practice or consultation as a
  426  general practitioner;
  427         2. The instruction of students in an accredited health
  428  professional school or accredited residency program in the
  429  general practice of medicine; or
  430         3. A clinical research program that is affiliated with an
  431  accredited medical school or teaching hospital and that is in
  432  the general practice of medicine.
  433         (c) If the health care provider against whom or on whose
  434  behalf the testimony is offered is a health care provider other
  435  than a specialist or a general practitioner, the expert witness
  436  must have devoted professional time during the 3 years
  437  immediately preceding the date of the occurrence that is the
  438  basis for the action to:
  439         1. The active clinical practice of, or consulting with
  440  respect to, the same or similar health profession as the health
  441  care provider against whom or on whose behalf the testimony is
  442  offered;
  443         2. The instruction of students in an accredited health
  444  professional school or accredited residency program in the same
  445  or similar health profession in which the health care provider
  446  against whom or on whose behalf the testimony is offered; or
  447         3. A clinical research program that is affiliated with an
  448  accredited medical school or teaching hospital and that is in
  449  the same or similar health profession as the health care
  450  provider against whom or on whose behalf the testimony is
  451  offered.
  452         (12) If a physician licensed under chapter 458 or chapter
  453  459 or a dentist licensed under chapter 466 is the party against
  454  whom, or on whose behalf, expert testimony about the prevailing
  455  professional standard of care is offered, the expert witness
  456  must be licensed under chapter 458, chapter 459, or chapter 466
  457  or possess a valid expert witness certificate issued under s.
  458  458.3175, s. 459.0066, or s. 466.005.
  459         (13) A health care provider’s failure to comply with or
  460  breach of any federal requirement is not admissible as evidence
  461  in any medical negligence case in this state.
  462         Section 11. Paragraph (a) of subsection (2), subsection
  463  (5), and paragraph (b) of subsection (6) of section 766.106,
  464  Florida Statutes, are amended to read:
  465         766.106 Notice before filing action for medical negligence;
  466  presuit screening period; offers for admission of liability and
  467  for arbitration; informal discovery; review.—
  468         (2) PRESUIT NOTICE.—
  469         (a) After completion of presuit investigation pursuant to
  470  s. 766.203(2) and prior to filing a complaint for medical
  471  negligence, a claimant shall notify each prospective defendant
  472  by certified mail, return receipt requested, of intent to
  473  initiate litigation for medical negligence. Notice to each
  474  prospective defendant must include, if available, a list of all
  475  known health care providers seen by the claimant for the
  476  injuries complained of subsequent to the alleged act of
  477  negligence, all known health care providers during the 2-year
  478  period prior to the alleged act of negligence who treated or
  479  evaluated the claimant, and copies of all of the medical records
  480  relied upon by the expert in signing the affidavit, and the
  481  executed authorization form provided in s. 766.1065. The
  482  requirement of providing the list of known health care providers
  483  may not serve as grounds for imposing sanctions for failure to
  484  provide presuit discovery.
  485         (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
  486  discussion, written document, report, or other work product
  487  generated by the presuit screening process is not discoverable
  488  or admissible in any civil action for any purpose by the
  489  opposing party. All participants, including, but not limited to,
  490  physicians, investigators, witnesses, and employees or
  491  associates of the defendant, are immune from civil liability
  492  arising from participation in the presuit screening process.
  493  This subsection does not prevent a physician licensed under
  494  chapter 458 or chapter 459 or a dentist licensed under chapter
  495  466 who submits a verified written expert medical opinion from
  496  being subject to denial of a license or disciplinary action
  497  under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
  498  466.028(1)(ll).
  499         (6) INFORMAL DISCOVERY.—
  500         (b) Informal discovery may be used by a party to obtain
  501  unsworn statements, the production of documents or things, and
  502  physical and mental examinations, as follows:
  503         1. Unsworn statements.—Any party may require other parties
  504  to appear for the taking of an unsworn statement. Such
  505  statements may be used only for the purpose of presuit screening
  506  and are not discoverable or admissible in any civil action for
  507  any purpose by any party. A party desiring to take the unsworn
  508  statement of any party must give reasonable notice in writing to
  509  all parties. The notice must state the time and place for taking
  510  the statement and the name and address of the party to be
  511  examined. Unless otherwise impractical, the examination of any
  512  party must be done at the same time by all other parties. Any
  513  party may be represented by counsel at the taking of an unsworn
  514  statement. An unsworn statement may be recorded electronically,
  515  stenographically, or on videotape. The taking of unsworn
  516  statements is subject to the provisions of the Florida Rules of
  517  Civil Procedure and may be terminated for abuses.
  518         2. Documents or things.—Any party may request discovery of
  519  documents or things. The documents or things must be produced,
  520  at the expense of the requesting party, within 20 days after the
  521  date of receipt of the request. A party is required to produce
  522  discoverable documents or things within that party’s possession
  523  or control. Medical records shall be produced as provided in s.
  524  766.204.
  525         3. Physical and mental examinations.—A prospective
  526  defendant may require an injured claimant to appear for
  527  examination by an appropriate health care provider. The
  528  prospective defendant shall give reasonable notice in writing to
  529  all parties as to the time and place for examination. Unless
  530  otherwise impractical, a claimant is required to submit to only
  531  one examination on behalf of all potential defendants. The
  532  practicality of a single examination must be determined by the
  533  nature of the claimant’s condition, as it relates to the
  534  liability of each prospective defendant. Such examination report
  535  is available to the parties and their attorneys upon payment of
  536  the reasonable cost of reproduction and may be used only for the
  537  purpose of presuit screening. Otherwise, such examination report
  538  is confidential and exempt from the provisions of s. 119.07(1)
  539  and s. 24(a), Art. I of the State Constitution.
  540         4. Written questions.—Any party may request answers to
  541  written questions, the number of which may not exceed 30,
  542  including subparts. A response must be made within 20 days after
  543  receipt of the questions.
  544         5. Unsworn statements of treating health care providers
  545  Medical information release.—The claimant must execute a medical
  546  information release that allows A prospective defendant or his
  547  or her legal representative may also to take unsworn statements
  548  of the claimant’s treating health care providers physicians. The
  549  statements must be limited to those areas that are potentially
  550  relevant to the claim of personal injury or wrongful death.
  551  Subject to the procedural requirements of subparagraph 1., a
  552  prospective defendant may take unsworn statements from a
  553  claimant’s treating physicians. Reasonable notice and
  554  opportunity to be heard must be given to the claimant or the
  555  claimant’s legal representative before taking unsworn
  556  statements. The claimant or claimant’s legal representative has
  557  the right to attend the taking of such unsworn statements.
  558         Section 12. Section 766.1065, Florida Statutes, is created
  559  to read:
  560         766.1065 Authorization for release of protected health
  561  information.—
  562         (1) Presuit notice of intent to initiate litigation for
  563  medical negligence under s. 766.106(2) must be accompanied by an
  564  authorization for release of protected health information in the
  565  form specified by this section, authorizing the disclosure of
  566  protected health information that is potentially relevant to the
  567  claim of personal injury or wrongful death. The presuit notice
  568  is void if this authorization does not accompany the presuit
  569  notice and other materials required by s. 766.106(2).
  570         (2) If the authorization required by this section is
  571  revoked, the presuit notice under s. 766.106(2) is deemed
  572  retroactively void from the date of issuance, and any tolling
  573  effect that the presuit notice may have had on any applicable
  574  statute-of-limitations period is retroactively rendered void.
  575         (3) The authorization required by this section shall be in
  576  the following form and shall be construed in accordance with the
  577  “Standards for Privacy of Individually Identifiable Health
  578  Information” in 45 C.F.R. parts 160 and 164:
  579  
  580      AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION    
  581  
  582         A. I,_(...Name of patient or authorized
  583         representative...) [hereinafter “Patient”], authorize
  584         that (...Name of health care provider to whom the
  585         presuit notice is directed...) and his/her/its
  586         insurer(s), self-insurer(s), and attorney(s) may
  587         obtain and disclose (within the parameters set out
  588         below) the protected health information described
  589         below for the following specific purposes:
  590         1. Facilitating the investigation and evaluation
  591         of the medical negligence claim described in the
  592         accompanying presuit notice; or
  593         2. Defending against any litigation arising out
  594         of the medical negligence claim made on the basis of
  595         the accompanying presuit notice.
  596         B. The health information obtained, used, or
  597         disclosed extends to, and includes, the verbal as well
  598         as the written and is described as follows:
  599         1. The health information in the custody of the
  600         following health care providers who have examined,
  601         evaluated, or treated the Patient in connection with
  602         injuries complained of after the alleged act of
  603         negligence: (List the name and current address of all
  604         health care providers). This authorization extends to
  605         any additional health care providers that may in the
  606         future evaluate, examine, or treat the Patient for the
  607         injuries complained of.
  608         2. The health information in the custody of the
  609         following health care providers who have examined,
  610         evaluated, or treated the Patient during a period
  611         commencing 2 years before the incident that is the
  612         basis of the accompanying presuit notice.
  613  
  614         (List the name and current address of such health care
  615         providers, if applicable.)
  616  
  617         C. This authorization does not apply to the
  618         following list of health care providers possessing
  619         health care information about the Patient because the
  620         Patient certifies that such health care information is
  621         not potentially relevant to the claim of personal
  622         injury or wrongful death that is the basis of the
  623         accompanying presuit notice.
  624  
  625         (List the name of each health care provider to whom
  626         this authorization does not apply and the inclusive
  627         dates of examination, evaluation, or treatment to be
  628         withheld from disclosure. If none, specify “none.”)
  629  
  630         D. The persons or class of persons to whom the
  631         Patient authorizes such health information to be
  632         disclosed or by whom such health information is to be
  633         used:
  634         1. Any health care provider providing care or
  635         treatment for the Patient.
  636         2. Any liability insurer or self-insurer
  637         providing liability insurance coverage, self
  638         insurance, or defense to any health care provider to
  639         whom presuit notice is given regarding the care and
  640         treatment of the Patient.
  641         3. Any consulting or testifying expert employed
  642         by or on behalf of (name of health care provider to
  643         whom presuit notice was given), his/her/its
  644         insurer(s), self-insurer(s), or attorney(s) regarding
  645         to the matter of the presuit notice accompanying this
  646         authorization.
  647         4. Any attorney (including secretarial, clerical,
  648         or paralegal staff) employed by or on behalf of (name
  649         of health care provider to whom presuit notice was
  650         given) regarding the matter of the presuit notice
  651         accompanying this authorization.
  652         5. Any trier of the law or facts relating to any
  653         suit filed seeking damages arising out of the medical
  654         care or treatment of the Patient.
  655         E. This authorization expires upon resolution of
  656         the claim or at the conclusion of any litigation
  657         instituted in connection with the matter of the
  658         presuit notice accompanying this authorization,
  659         whichever occurs first.
  660         F. The Patient understands that, without
  661         exception, the Patient has the right to revoke this
  662         authorization in writing. The Patient further
  663         understands that the consequence of any such
  664         revocation is that the presuit notice under s.
  665         766.106(2), Florida Statutes, is deemed retroactively
  666         void from the date of issuance, and any tolling effect
  667         that the presuit notice may have had on any applicable
  668         statute-of-limitations period is retroactively
  669         rendered void.
  670         G. The Patient understands that signing this
  671         authorization is not a condition for continued
  672         treatment, payment, enrollment, or eligibility for
  673         health plan benefits.
  674         H. The Patient understands that information used
  675         or disclosed under this authorization may be subject
  676         to additional disclosure by the recipient and may not
  677         be protected by federal HIPAA privacy regulations.
  678  
  679         Signature of Patient/Representative: ....
  680         Date: ....
  681         Name of Patient/Representative: ....
  682         Description of Representative’s Authority: ....
  683         Section 13. Subsection (2) of section 766.206, Florida
  684  Statutes, is amended to read:
  685         766.206 Presuit investigation of medical negligence claims
  686  and defenses by court.—
  687         (2) If the court finds that the notice of intent to
  688  initiate litigation mailed by the claimant does is not comply in
  689  compliance with the reasonable investigation requirements of ss.
  690  766.201-766.212, including a review of the claim and a verified
  691  written medical expert opinion by an expert witness as defined
  692  in s. 766.202, or that the authorization accompanying the notice
  693  of intent required under s. 766.1065 is not completed in good
  694  faith by the claimant, the court shall dismiss the claim, and
  695  the person who mailed such notice of intent, whether the
  696  claimant or the claimant’s attorney, shall be personally liable
  697  for all attorney’s fees and costs incurred during the
  698  investigation and evaluation of the claim, including the
  699  reasonable attorney’s fees and costs of the defendant or the
  700  defendant’s insurer.
  701         Section 14. Section 768.135, Florida Statutes, is amended
  702  to read:
  703         768.135 Volunteer team physicians; immunity.—
  704         (1) As used in this section, the term “volunteer team
  705  physician” means any person licensed to practice medicine
  706  pursuant to chapter 458, chapter 459, chapter 460, chapter 461,
  707  or chapter 466:
  708         (a)(1) Who is acting in the capacity of a volunteer team
  709  physician in attendance at an athletic event sponsored by a
  710  public or private elementary or secondary school; and
  711         (b)(2) Who gratuitously and in good faith prior to the
  712  athletic event agrees to render emergency care or treatment to
  713  any participant in such event in connection with an emergency
  714  arising during or as the result of such event, without objection
  715  of such participant.,
  716         (2) A volunteer team physician is shall not be held liable
  717  for any civil damages as a result of such care or treatment or
  718  as a result of any act or failure to act in providing or
  719  arranging further medical treatment unless the when such care or
  720  treatment was rendered in a wrongful manner as a reasonably
  721  prudent person similarly licensed to practice medicine would
  722  have acted under the same or similar circumstances.
  723         (3) A practitioner licensed under chapter 458, chapter 459,
  724  chapter 460, or s. 464.012 who gratuitously and in good faith
  725  conducts an evaluation pursuant to s. 1006.20(2)(c) is not
  726  liable for any civil damages arising from that evaluation unless
  727  the evaluation was conducted in a wrongful manner.
  728         (4) As used in this section, the term “wrongful manner”
  729  means in bad faith or with malicious purpose or in a manner
  730  exhibiting wanton and willful disregard of human rights, safety,
  731  or property, and shall be construed in conformity with the
  732  standard set forth in s. 768.28(9)(a).
  733         Section 15. This act shall take effect July 1, 2011.

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