Bill Text: FL S1892 | 2011 | Regular Session | Introduced


Bill Title: Health Care

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2011-04-13 - Unfavorable by Health Regulation, laid on Table; YEAS 6 NAYS 6, companion bill(s) passed, see CS/CS/CS/CS/HB 479 (Ch. [S1892 Detail]

Download: Florida-2011-S1892-Introduced.html
       Florida Senate - 2011                                    SB 1892
       
       
       
       By Senator Bennett
       
       
       
       
       21-00423B-11                                          20111892__
    1                        A bill to be entitled                      
    2         An act relating to health care; creating ss. 458.3175
    3         and 459.0066, F.S.; requiring the Board of Medicine
    4         and the Board of Osteopathic Medicine to issue expert
    5         witness certificates to certain physicians licensed
    6         outside the state; providing application and
    7         certification requirements; establishing application
    8         fees; providing for validity and use of certificates;
    9         exempting physicians issued certificates from certain
   10         licensure and fee requirements; requiring the boards
   11         to adopt rules; amending ss. 458.331 and 459.015,
   12         F.S.; providing additional acts that constitute
   13         grounds for denial of a license or disciplinary action
   14         to which penalties apply; providing construction with
   15         respect to the doctrine of incorporation by reference;
   16         amending ss. 458.351 and 459.026, F.S.; requiring the
   17         boards to adopt within a specified period certain
   18         patient forms specifying cataract surgery risks;
   19         exempting rules adopting the patient forms from
   20         certain administrative procedures; specifying that an
   21         incident resulting from risks disclosed in the patient
   22         form is not an adverse incident; providing for the
   23         execution and admissibility of the patient forms in
   24         civil and administrative proceedings; creating a
   25         rebuttable presumption that a physician disclosed
   26         cataract surgery risks if the patient form is
   27         executed; amending s. 464.012, F.S.; expanding the
   28         scope of practice to authorize an advanced registered
   29         nurse practitioner to order, administer, monitor, and
   30         alter any drug or drug therapies that are necessary
   31         for the proper medical care and treatment of a patient
   32         under specified circumstances; requiring that the
   33         Board of Nursing adopt rules; authorizing a certified
   34         registered nurse anesthetist, while participating in
   35         the management of a patient in the postanesthesia
   36         recovery area, to order the administration of drugs
   37         that are commonly used to alleviate pain; amending s.
   38         627.4147, F.S.; deleting a requirement that medical
   39         malpractice insurance contracts contain a clause
   40         authorizing the insurer to make and conclude certain
   41         offers within policy limits over the insured’s veto;
   42         amending s. 766.102, F.S.; revising the burden of
   43         proof that a claimant must demonstrate in order to
   44         prove medical negligence by a health care provider;
   45         defining terms; providing that certain insurance
   46         information is not admissible as evidence in civil
   47         actions; requiring that certain expert witnesses who
   48         provide expert testimony meet certain licensure or
   49         certification requirements; establishing the burden of
   50         proof that a claimant must meet in certain damage
   51         claims against health care providers based on death or
   52         personal injury; excluding a health care provider’s
   53         failure to comply with or a breach of federal
   54         requirements from evidence in medical negligence cases
   55         in the state; amending s. 766.106, F.S.; requiring
   56         claimants for medical malpractice to execute an
   57         authorization form; allowing prospective medical
   58         malpractice defendants to interview a claimant’s
   59         treating health care provider without notice to or the
   60         presence of the claimant or the claimant’s legal
   61         representative; authorizing prospective defendants to
   62         take unsworn statements of a claimant’s health care
   63         provider; creating s. 766.1065, F.S.; requiring that
   64         presuit notice for medical negligence claims be
   65         accompanied by an authorization for release of
   66         protected health information; providing requirements
   67         for the form of such authorization; amending s.
   68         766.206, F.S.; requiring dismissal of a medical
   69         malpractice claim if such authorization is not
   70         completed in good faith; amending s. 768.0981, F.S.;
   71         limiting the liability of hospitals related to certain
   72         medical negligence claims; providing an effective
   73         date.
   74  
   75  Be It Enacted by the Legislature of the State of Florida:
   76  
   77         Section 1. Section 458.3175, Florida Statutes, is created
   78  to read:
   79         458.3175 Expert witness certificate.—
   80         (1)(a) The board shall issue a certificate authorizing a
   81  physician who holds an active and valid license to practice
   82  medicine in another state or a province of Canada to provide
   83  expert testimony in this state if the physician submits to the
   84  board a complete registration application in the format
   85  prescribed by the board, pays an application fee established by
   86  the board not to exceed $50, and has not had a previous expert
   87  witness certificate revoked by the board.
   88         (b) The board shall approve or deny an application for an
   89  expert witness certificate within 5 business days after receipt
   90  of the completed application and payment of the application fee.
   91  An application is approved by default if the board does not act
   92  upon the application within the required period. A physician
   93  must notify the board in writing of his or her intent to rely on
   94  a certificate approved by default.
   95         (c) An expert witness certificate is valid for 2 years
   96  after the date of issuance.
   97         (2) An expert witness certificate authorizes the physician
   98  to whom the certificate is issued to do only the following:
   99         (a) Provide a verified written medical expert opinion as
  100  provided in s. 766.203.
  101         (b) Provide expert testimony about the prevailing
  102  professional standard of care in connection with medical
  103  negligence litigation pending in this state against a physician
  104  licensed under this chapter or chapter 459.
  105         (3) An expert witness certificate does not authorize a
  106  physician to engage in the practice of medicine as defined in s.
  107  458.305. A physician issued a certificate under this section who
  108  does not otherwise practice medicine in this state is not
  109  required to obtain a license under this chapter or pay any
  110  license fees, including, but not limited to, a neurological
  111  injury compensation assessment.
  112         (4) The board shall adopt rules to administer this section.
  113         Section 2. Subsection (11) is added to section 458.331,
  114  Florida Statutes, present paragraphs (oo) through (qq) of
  115  subsection (1) of that section are redesignated as paragraphs
  116  (pp) through (rr), respectively, and a new paragraph (oo) is
  117  added to that subsection, to read:
  118         458.331 Grounds for disciplinary action; action by the
  119  board and department.—
  120         (1) The following acts constitute grounds for denial of a
  121  license or disciplinary action, as specified in s. 456.072(2):
  122         (oo) Providing misleading, deceptive, or fraudulent expert
  123  witness testimony related to the practice of medicine.
  124         (11) The purpose of this section is to facilitate uniform
  125  discipline for those acts made punishable under this section
  126  and, to this end, a reference to this section constitutes a
  127  general reference under the doctrine of incorporation by
  128  reference.
  129         Section 3. Present subsection (6) of section 458.351,
  130  Florida Statutes, is renumbered as subsection (7), and a new
  131  subsection (6) is added to that section, to read:
  132         458.351 Reports of adverse incidents in office practice
  133  settings.—
  134         (6)(a) The board shall adopt rules establishing a standard
  135  informed consent form that sets forth the recognized specific
  136  risks related to cataract surgery. The board must propose such
  137  rules by October 1, 2011, and the provisions of s. 120.541
  138  relating to adverse impacts, estimated regulatory costs, and
  139  legislative ratification of rules do not apply to such rules.
  140         (b) Before formally proposing the rule, the board must
  141  consider information from physicians licensed under this chapter
  142  or chapter 459 regarding recognized specific risks related to
  143  cataract surgery and the standard informed consent forms adopted
  144  for use in the medical field by other states.
  145         (c) A patient’s informed consent is not executed until the
  146  patient, or a person authorized by the patient to give consent,
  147  and a competent witness sign the form adopted by the board.
  148         (d) An incident resulting from recognized specific risks
  149  described in the signed consent form is not considered an
  150  adverse incident for purposes of s. 395.0197 and this section.
  151         (e) In a civil action or administrative proceeding against
  152  a physician based on his or her alleged failure to properly
  153  disclose the risks of cataract surgery, a patient’s informed
  154  consent executed as provided in paragraph (c) on the form
  155  adopted by the board is admissible as evidence and creates a
  156  rebuttable presumption that the physician properly disclosed the
  157  risks. This rebuttable presumption shall be included in the
  158  charge to the jury in a civil action.
  159         Section 4. Section 459.0066, Florida Statutes, is created
  160  to read:
  161         459.0066 Expert witness certificate.—
  162         (1)(a) The board shall issue a certificate authorizing a
  163  physician who holds an active and valid license to practice
  164  osteopathic medicine in another state or a province of Canada to
  165  provide expert testimony in this state if the physician submits
  166  to the board a complete registration application in the format
  167  prescribed by the board, pays an application fee established by
  168  the board not to exceed $50, and has not had a previous expert
  169  witness certificate revoked by the board.
  170         (b) The board shall approve or deny an application for an
  171  expert witness certificate within 5 business days after receipt
  172  of the completed application and payment of the application fee.
  173  An application is approved by default if the board does not act
  174  upon the application within the required period. A physician
  175  must notify the board in writing of his or her intent to rely on
  176  a certificate approved by default.
  177         (c) An expert witness certificate is valid for 2 years
  178  after the date of issuance.
  179         (2) An expert witness certificate authorizes the physician
  180  to whom the certificate is issued to do only the following:
  181         (a) Provide a verified written medical expert opinion as
  182  provided in s. 766.203.
  183         (b) Provide expert testimony about the prevailing
  184  professional standard of care in connection with medical
  185  negligence litigation pending in this state against a physician
  186  licensed under chapter 458 or this chapter.
  187         (3) An expert witness certificate does not authorize a
  188  physician to engage in the practice of osteopathic medicine as
  189  defined in s. 459.003. A physician issued a certificate under
  190  this section who does not otherwise practice osteopathic
  191  medicine in this state is not required to obtain a license under
  192  this chapter or pay any license fees, including, but not limited
  193  to, a neurological injury compensation assessment.
  194         (4) The board shall adopt rules to administer this section.
  195         Section 5. Subsection (11) is added to section 459.015,
  196  Florida Statutes, present paragraphs (qq) through (ss) of
  197  subsection (1) of that section are redesignated as paragraphs
  198  (rr) through (tt), respectively, and a new paragraph (qq) is
  199  added to that subsection, to read:
  200         459.015 Grounds for disciplinary action; action by the
  201  board and department.—
  202         (1) The following acts constitute grounds for denial of a
  203  license or disciplinary action, as specified in s. 456.072(2):
  204         (qq) Providing misleading, deceptive, or fraudulent expert
  205  witness testimony related to the practice of osteopathic
  206  medicine.
  207         (11) The purpose of this section is to facilitate uniform
  208  discipline for those acts made punishable under this section
  209  and, to this end, a reference to this section constitutes a
  210  general reference under the doctrine of incorporation by
  211  reference.
  212         Section 6. Present subsection (6) of section 459.026,
  213  Florida Statutes, is renumbered as subsection (7), and a new
  214  subsection (6) is added to that section, to read:
  215         459.026 Reports of adverse incidents in office practice
  216  settings.—
  217         (6)(a) The board shall adopt rules establishing a standard
  218  informed consent form that sets forth the recognized specific
  219  risks related to cataract surgery. The board must propose such
  220  rules by October 1, 2011, and the provisions of s. 120.541
  221  relating to adverse impacts, estimated regulatory costs, and
  222  legislative ratification of rules do not apply to such rules.
  223         (b) Before formally proposing the rule, the board must
  224  consider information from physicians licensed under chapter 458
  225  or this chapter regarding recognized specific risks related to
  226  cataract surgery and the standard informed consent forms adopted
  227  for use in the medical field by other states.
  228         (c) A patient’s informed consent is not executed until the
  229  patient, or a person authorized by the patient to give consent,
  230  and a competent witness sign the form adopted by the board.
  231         (d) An incident resulting from recognized specific risks
  232  described in the signed consent form is not considered an
  233  adverse incident for purposes of s. 395.0197 and this section.
  234         (e) In a civil action or administrative proceeding against
  235  a physician based on his or her alleged failure to properly
  236  disclose the risks of cataract surgery, a patient’s informed
  237  consent executed as provided in paragraph (c) on the form
  238  adopted by the board is admissible as evidence and creates a
  239  rebuttable presumption that the physician properly disclosed the
  240  risks. This rebuttable presumption shall be included in the
  241  charge to the jury in a civil action.
  242         Section 7. Subsection (3) and paragraph (a) of subsection
  243  (4) of section 464.012, Florida Statutes, are amended to read:
  244         464.012 Certification of advanced registered nurse
  245  practitioners; fees.—
  246         (3) An advanced registered nurse practitioner shall perform
  247  those functions authorized in this section within the framework
  248  of an established protocol that is filed with the board upon
  249  biennial license renewal and within 30 days after entering into
  250  a supervisory relationship with a physician or changes to the
  251  protocol. The board shall review the protocol to ensure
  252  compliance with applicable regulatory standards for protocols.
  253  The board shall refer to the department licensees submitting
  254  protocols that are not compliant with the regulatory standards
  255  for protocols. A practitioner currently licensed under chapter
  256  458, chapter 459, or chapter 466 shall maintain supervision for
  257  directing the specific course of medical treatment. Within the
  258  established framework, an advanced registered nurse practitioner
  259  may:
  260         (a) Order, administer, monitor, and alter any drug or drug
  261  therapies that are necessary for the proper medical care and
  262  treatment of a patient, including Schedule II through Schedule V
  263  controlled substances under chapter 893 and those drugs agreed
  264  upon by the advanced registered nurse practitioner and the
  265  supervising practitioner and specified in the protocol. An
  266  advanced registered nurse practitioner may order or administer
  267  such drugs under the following conditions:
  268         1.The drugs are ordered or administered by an advanced
  269  registered nurse practitioner in accordance with a protocol
  270  developed by the advanced registered nurse practitioner and the
  271  supervising practitioner, and the drugs ordered are consistent
  272  with the advanced registered nurse practitioner’s educational
  273  preparation or for which clinical competency has been
  274  established and maintained.
  275         2. The protocol covering the order or administration of
  276  drugs specifies the name of the advanced registered nurse
  277  practitioner who may administer or order drugs, the drugs that
  278  may be ordered and the circumstances under which they may be
  279  ordered, the extent of the practitioner’s supervision of the
  280  advanced registered nurse practitioner, and the method of
  281  periodic review of the advanced registered nurse practitioner’s
  282  competence, including peer review. The protocol for
  283  administering Schedule II controlled substances must address the
  284  illness, injury, or condition for which a Schedule II controlled
  285  substance is administered.
  286         3. The administering or ordering of drugs by an advanced
  287  registered nurse practitioner occurs under practitioner
  288  supervision. As used in this paragraph, the term “practitioner
  289  supervision” means a collaboration between the advanced
  290  registered nurse practitioner and the supervising practitioner
  291  on the development of the protocol and the availability of the
  292  supervising practitioner via telephonic contact at the time the
  293  patient is examined by the advanced registered nurse
  294  practitioner. The term does not mean that the physical presence
  295  of the supervising practitioner is required. A practitioner may
  296  not supervise more than four advanced registered nurse
  297  practitioners at any one time.
  298         4. The controlled substances are administered or ordered in
  299  accordance with a patient-specific protocol approved by the
  300  treating or supervising practitioner if Schedule II or Schedule
  301  III controlled substances are administered or ordered by the
  302  advanced registered nurse practitioner. A copy of the section of
  303  the advanced registered nurse practitioner’s protocol relating
  304  to controlled substances must be provided upon request to the
  305  licensed pharmacist who dispenses the drugs.
  306         5. The board has certified that the advanced registered
  307  nurse practitioner has satisfactorily completed:
  308         a.At least 6 months of direct supervision in the
  309  administering and ordering of drugs; and
  310         b. A course in pharmacology covering the order, use,
  311  administration, and dispensing of controlled substances.
  312  
  313  The board shall adopt rules to administer this paragraph.
  314         (b) Initiate appropriate therapies for certain conditions.
  315         (c) Perform additional functions as may be determined by
  316  rule in accordance with s. 464.003(2).
  317         (d) Order diagnostic tests and physical and occupational
  318  therapy.
  319         (4) In addition to the general functions specified in
  320  subsection (3), an advanced registered nurse practitioner may
  321  perform the following acts within his or her specialty:
  322         (a) The certified registered nurse anesthetist may, to the
  323  extent authorized by established protocol approved by the
  324  medical staff of the facility in which the anesthetic service is
  325  performed, perform any or all of the following:
  326         1. Determine the health status of the patient as it relates
  327  to the risk factors and to the anesthetic management of the
  328  patient through the performance of the general functions.
  329         2. Based on history, physical assessment, and supplemental
  330  laboratory results, determine, with the consent of the
  331  responsible physician, the appropriate type of anesthesia within
  332  the framework of the protocol.
  333         3. Order under the protocol preanesthetic medication.
  334         4. Perform under the protocol procedures commonly used to
  335  render the patient insensible to pain during the performance of
  336  surgical, obstetrical, therapeutic, or diagnostic clinical
  337  procedures. These procedures include ordering and administering
  338  regional, spinal, and general anesthesia; inhalation agents and
  339  techniques; intravenous agents and techniques; and techniques of
  340  hypnosis.
  341         5. Order or perform monitoring procedures indicated as
  342  pertinent to the anesthetic health care management of the
  343  patient.
  344         6. Support life functions during anesthesia health care,
  345  including induction and intubation procedures, the use of
  346  appropriate mechanical supportive devices, and the management of
  347  fluid, electrolyte, and blood component balances.
  348         7. Recognize and take appropriate corrective action for
  349  abnormal patient responses to anesthesia, adjunctive medication,
  350  or other forms of therapy.
  351         8. Recognize and treat a cardiac arrhythmia while the
  352  patient is under anesthetic care.
  353         9. Participate in management of the patient while in the
  354  postanesthesia recovery area, including ordering the
  355  administration of fluids and drugs, which include those drugs
  356  that are commonly used to alleviate pain.
  357         10. Place special peripheral and central venous and
  358  arterial lines for blood sampling and monitoring as appropriate.
  359         Section 8. Paragraph (b) of subsection (1) of section
  360  627.4147, Florida Statutes, is amended to read:
  361         627.4147 Medical malpractice insurance contracts.—
  362         (1) In addition to any other requirements imposed by law,
  363  each self-insurance policy as authorized under s. 627.357 or s.
  364  624.462 or insurance policy providing coverage for claims
  365  arising out of the rendering of, or the failure to render,
  366  medical care or services, including those of the Florida Medical
  367  Malpractice Joint Underwriting Association, shall include:
  368         (b)1. Except as provided in subparagraph 2., a clause
  369  authorizing the insurer or self-insurer to determine, to make,
  370  and to conclude, without the permission of the insured, any
  371  offer of admission of liability and for arbitration pursuant to
  372  s. 766.106, settlement offer, or offer of judgment, if the offer
  373  is within the policy limits. It is against public policy for any
  374  insurance or self-insurance policy to contain a clause giving
  375  the insured the exclusive right to veto any offer for admission
  376  of liability and for arbitration made pursuant to s. 766.106,
  377  settlement offer, or offer of judgment, when such offer is
  378  within the policy limits. However, any offer of admission of
  379  liability, settlement offer, or offer of judgment made by an
  380  insurer or self-insurer shall be made in good faith and in the
  381  best interests of the insured.
  382         2.a. With respect to dentists licensed under chapter 466, A
  383  clause clearly stating whether or not the insured has the
  384  exclusive right to veto any offer of admission of liability and
  385  for arbitration pursuant to s. 766.106, settlement offer, or
  386  offer of judgment if the offer is within policy limits. An
  387  insurer or self-insurer shall not make or conclude, without the
  388  permission of the insured, any offer of admission of liability
  389  and for arbitration pursuant to s. 766.106, settlement offer, or
  390  offer of judgment, if such offer is outside the policy limits.
  391  However, any offer for admission of liability and for
  392  arbitration made under s. 766.106, settlement offer, or offer of
  393  judgment made by an insurer or self-insurer shall be made in
  394  good faith and in the best interest of the insured.
  395         2.b. If the policy contains a clause stating the insured
  396  does not have the exclusive right to veto any offer or admission
  397  of liability and for arbitration made pursuant to s. 766.106,
  398  settlement offer or offer of judgment, the insurer or self
  399  insurer shall provide to the insured or the insured’s legal
  400  representative by certified mail, return receipt requested, a
  401  copy of the final offer of admission of liability and for
  402  arbitration made pursuant to s. 766.106, settlement offer or
  403  offer of judgment and at the same time such offer is provided to
  404  the claimant. A copy of any final agreement reached between the
  405  insurer and claimant shall also be provided to the insurer or
  406  his or her legal representative by certified mail, return
  407  receipt requested not more than 10 days after affecting such
  408  agreement.
  409         Section 9. Subsections (1), (3), (4), and (5) of section
  410  766.102, Florida Statutes, are amended, present subsection (12)
  411  of that section is renumbered as subsection (14), and new
  412  subsections (12) and (13) are added to that section, to read:
  413         766.102 Medical negligence; standards of recovery; expert
  414  witness.—
  415         (1) In any action for recovery of damages based on the
  416  death or personal injury of any person in which it is alleged
  417  that such death or injury resulted from the negligence of a
  418  health care provider as defined in s. 766.202(4), the claimant
  419  shall have the burden of proving by clear and convincing the
  420  greater weight of evidence that the alleged actions of the
  421  health care provider represented a breach of the prevailing
  422  professional standard of care for that health care provider. The
  423  prevailing professional standard of care for a given health care
  424  provider shall be that level of care, skill, and treatment
  425  which, in light of all relevant surrounding circumstances, is
  426  recognized as acceptable and appropriate by reasonably prudent
  427  similar health care providers.
  428         (3)(a) As used in this subsection, the term:
  429         1. “Insurer” means any public or private insurer, including
  430  the Centers for Medicare and Medicaid Services.
  431         2. “Reimbursement determination” means an insurer’s
  432  determination of the amount that the insurer will reimburse a
  433  health care provider for health care services.
  434         3. “Reimbursement policies” means an insurer’s policies and
  435  procedures governing its decisions regarding health insurance
  436  coverage and method of payment and the data upon which such
  437  policies and procedures are based, including, but not limited
  438  to, data from national research groups and other patient safety
  439  data as defined in s. 766.1016.
  440         (b) The existence of a medical injury does shall not create
  441  any inference or presumption of negligence against a health care
  442  provider, and the claimant must maintain the burden of proving
  443  that an injury was proximately caused by a breach of the
  444  prevailing professional standard of care by the health care
  445  provider. Any records, policies, or testimony of an insurer’s
  446  reimbursement policies or reimbursement determination regarding
  447  the care provided to the plaintiff are not admissible as
  448  evidence in any civil action. However, the discovery of the
  449  presence of a foreign body, such as a sponge, clamp, forceps,
  450  surgical needle, or other paraphernalia commonly used in
  451  surgical, examination, or diagnostic procedures, shall be prima
  452  facie evidence of negligence on the part of the health care
  453  provider.
  454         (4)(a) The Legislature is cognizant of the changing trends
  455  and techniques for the delivery of health care in this state and
  456  the discretion that is inherent in the diagnosis, care, and
  457  treatment of patients by different health care providers. The
  458  failure of a health care provider to order, perform, or
  459  administer supplemental diagnostic tests is shall not be
  460  actionable if the health care provider acted in good faith and
  461  with due regard for the prevailing professional standard of
  462  care.
  463         (b) In an action for damages based on death or personal
  464  injury which alleges that such death or injury resulted from the
  465  failure of a health care provider to order, perform, or
  466  administer supplemental diagnostic tests, the claimant has the
  467  burden of proving by clear and convincing evidence that the
  468  alleged actions of the health care provider represented a breach
  469  of the prevailing professional standard of care.
  470         (5) A person may not give expert testimony concerning the
  471  prevailing professional standard of care unless the that person
  472  is a licensed health care provider who holds an active and valid
  473  license and conducts a complete review of the pertinent medical
  474  records and meets the following criteria:
  475         (a) If the health care provider against whom or on whose
  476  behalf the testimony is offered is a specialist, the expert
  477  witness must:
  478         1. Specialize in the same specialty as the health care
  479  provider against whom or on whose behalf the testimony is
  480  offered; or specialize in a similar specialty that includes the
  481  evaluation, diagnosis, or treatment of the medical condition
  482  that is the subject of the claim and have prior experience
  483  treating similar patients; and
  484         2. Have devoted professional time during the 5 3 years
  485  immediately preceding the date of the occurrence that is the
  486  basis for the action to:
  487         a. The active clinical practice of, or consulting with
  488  respect to, the same or similar specialty that includes the
  489  evaluation, diagnosis, or treatment of the medical condition
  490  that is the subject of the claim and have prior experience
  491  treating similar patients;
  492         b. Instruction of students in an accredited health
  493  professional school or accredited residency or clinical research
  494  program in the same or similar specialty; or
  495         c. A clinical research program that is affiliated with an
  496  accredited health professional school or accredited residency or
  497  clinical research program in the same or similar specialty.
  498         (b) If the health care provider against whom or on whose
  499  behalf the testimony is offered is a general practitioner, the
  500  expert witness must have devoted professional time during the 5
  501  years immediately preceding the date of the occurrence that is
  502  the basis for the action to:
  503         1. The active clinical practice or consultation as a
  504  general practitioner;
  505         2. The instruction of students in an accredited health
  506  professional school or accredited residency program in the
  507  general practice of medicine; or
  508         3. A clinical research program that is affiliated with an
  509  accredited medical school or teaching hospital and that is in
  510  the general practice of medicine.
  511         (c) If the health care provider against whom or on whose
  512  behalf the testimony is offered is a health care provider other
  513  than a specialist or a general practitioner, the expert witness
  514  must have devoted professional time during the 5 3 years
  515  immediately preceding the date of the occurrence that is the
  516  basis for the action to:
  517         1. The active clinical practice of, or consulting with
  518  respect to, the same or similar health profession as the health
  519  care provider against whom or on whose behalf the testimony is
  520  offered;
  521         2. The instruction of students in an accredited health
  522  professional school or accredited residency program in the same
  523  or similar health profession in which the health care provider
  524  against whom or on whose behalf the testimony is offered; or
  525         3. A clinical research program that is affiliated with an
  526  accredited medical school or teaching hospital and that is in
  527  the same or similar health profession as the health care
  528  provider against whom or on whose behalf the testimony is
  529  offered.
  530         (12) If a physician licensed under chapter 458 or chapter
  531  459 is the party against whom, or on whose behalf, expert
  532  testimony about the prevailing professional standard of care is
  533  offered, the expert witness must be licensed under chapter 458
  534  or chapter 459 or possess a valid expert witness certificate
  535  issued under s. 458.3175 or s. 459.0066.
  536         (13) A health care provider’s failure to comply with or a
  537  breach of any federal requirement is not admissible as evidence
  538  in any medical negligence case in this state.
  539         Section 10. Paragraph (a) of subsection (2), subsection
  540  (5), and paragraph (b) of subsection (6) of section 766.106,
  541  Florida Statutes, are amended to read:
  542         766.106 Notice before filing action for medical negligence;
  543  presuit screening period; offers for admission of liability and
  544  for arbitration; informal discovery; review.—
  545         (2) PRESUIT NOTICE.—
  546         (a) After completion of presuit investigation pursuant to
  547  s. 766.203(2) and prior to filing a complaint for medical
  548  negligence, a claimant shall notify each prospective defendant
  549  by certified mail, return receipt requested, of intent to
  550  initiate litigation for medical negligence. Notice to each
  551  prospective defendant must include, if available, a list of all
  552  known health care providers seen by the claimant for the
  553  injuries complained of subsequent to the alleged act of
  554  negligence, all known health care providers during the 2-year
  555  period prior to the alleged act of negligence who treated or
  556  evaluated the claimant, and copies of all of the medical records
  557  relied upon by the expert in signing the affidavit, and the
  558  executed authorization form provided in s. 766.1065. The
  559  requirement of providing the list of known health care providers
  560  may not serve as grounds for imposing sanctions for failure to
  561  provide presuit discovery.
  562         (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
  563  discussion, written document, report, or other work product
  564  generated by the presuit screening process is not discoverable
  565  or admissible in any civil action for any purpose by the
  566  opposing party. All participants, including, but not limited to,
  567  physicians, investigators, witnesses, and employees or
  568  associates of the defendant, are immune from civil liability
  569  arising from participation in the presuit screening process.
  570  This subsection does not prevent a physician licensed under
  571  chapter 458 or chapter 459 who submits a verified written expert
  572  medical opinion from being subject to denial of a license or
  573  disciplinary action under s. 458.331(1)(oo) or s.
  574  459.015(1)(qq).
  575         (6) INFORMAL DISCOVERY.—
  576         (b) Informal discovery may be used by a party to obtain
  577  unsworn statements, the production of documents or things, and
  578  physical and mental examinations, as follows:
  579         1. Unsworn statements.—Any party may require other parties
  580  to appear for the taking of an unsworn statement. Such
  581  statements may be used only for the purpose of presuit screening
  582  and are not discoverable or admissible in any civil action for
  583  any purpose by any party. A party desiring to take the unsworn
  584  statement of any party must give reasonable notice in writing to
  585  all parties. The notice must state the time and place for taking
  586  the statement and the name and address of the party to be
  587  examined. Unless otherwise impractical, the examination of any
  588  party must be done at the same time by all other parties. Any
  589  party may be represented by counsel at the taking of an unsworn
  590  statement. An unsworn statement may be recorded electronically,
  591  stenographically, or on videotape. The taking of unsworn
  592  statements is subject to the provisions of the Florida Rules of
  593  Civil Procedure and may be terminated for abuses.
  594         2. Documents or things.—Any party may request discovery of
  595  documents or things. The documents or things must be produced,
  596  at the expense of the requesting party, within 20 days after the
  597  date of receipt of the request. A party is required to produce
  598  discoverable documents or things within that party’s possession
  599  or control. Medical records shall be produced as provided in s.
  600  766.204.
  601         3. Physical and mental examinations.—A prospective
  602  defendant may require an injured claimant to appear for
  603  examination by an appropriate health care provider. The
  604  prospective defendant shall give reasonable notice in writing to
  605  all parties as to the time and place for examination. Unless
  606  otherwise impractical, a claimant is required to submit to only
  607  one examination on behalf of all potential defendants. The
  608  practicality of a single examination must be determined by the
  609  nature of the claimant’s condition, as it relates to the
  610  liability of each prospective defendant. Such examination report
  611  is available to the parties and their attorneys upon payment of
  612  the reasonable cost of reproduction and may be used only for the
  613  purpose of presuit screening. Otherwise, such examination report
  614  is confidential and exempt from the provisions of s. 119.07(1)
  615  and s. 24(a), Art. I of the State Constitution.
  616         4. Written questions.—Any party may request answers to
  617  written questions, the number of which may not exceed 30,
  618  including subparts. A response must be made within 20 days after
  619  receipt of the questions.
  620         5. Ex parte interviews of treating health care providers.—A
  621  prospective defendant or his or her legal representative shall
  622  have access to interview the claimant’s treating health care
  623  providers without notice to or the presence of the claimant or
  624  the claimant’s legal representative.
  625         6.5.Unsworn statements of treating health care providers
  626  Medical information release.—The claimant must execute a medical
  627  information release that allows A prospective defendant or his
  628  or her legal representative may also to take unsworn statements
  629  of the claimant’s treating health care providers physicians. The
  630  statements must be limited to those areas that are potentially
  631  relevant to the claim of personal injury or wrongful death.
  632  Subject to the procedural requirements of subparagraph 1., a
  633  prospective defendant may take unsworn statements from a
  634  claimant’s treating physicians. Reasonable notice and
  635  opportunity to be heard must be given to the claimant or the
  636  claimant’s legal representative before taking unsworn
  637  statements. The claimant or claimant’s legal representative has
  638  the right to attend the taking of such unsworn statements.
  639         Section 11. Section 766.1065, Florida Statutes, is created
  640  to read:
  641         766.1065 Authorization for release of protected health
  642  information.—
  643         (1) Presuit notice of intent to initiate litigation for
  644  medical negligence under s. 766.106(2) must be accompanied by an
  645  authorization for release of protected health information in the
  646  form specified by this section, authorizing the disclosure of
  647  protected health information that is potentially relevant to the
  648  claim of personal injury or wrongful death. The presuit notice
  649  is void if this authorization does not accompany the presuit
  650  notice and other materials required by s. 766.106(2).
  651         (2) If the authorization required by this section is
  652  revoked, the presuit notice under s. 766.106(2) is deemed
  653  retroactively void from the date of issuance, and any tolling
  654  effect that the presuit notice may have had on any applicable
  655  statute-of-limitations period is retroactively rendered void.
  656         (3) The authorization required by this section shall be in
  657  the following form and shall be construed in accordance with the
  658  “Standards for Privacy of Individually Identifiable Health
  659  Information” in 45 C.F.R. parts 160 and 164:
  660  
  661      AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION    
  662  
  663         A. I, (...Name of patient or authorized
  664         representative...) [hereinafter “Patient”], authorize
  665         that (...Name of health care provider to whom the
  666         presuit notice is directed...) and his/her/its
  667         insurer(s), self-insurer(s), and attorney(s) may
  668         obtain and disclose (within the parameters set out
  669         below) the protected health information described
  670         below for the following specific purposes:
  671         1. Facilitating the investigation and evaluation
  672         of the medical negligence claim described in the
  673         accompanying presuit notice; or
  674         2. Defending against any litigation arising out
  675         of the medical negligence claim made on the basis of
  676         the accompanying presuit notice.
  677         B. The health information obtained, used, or
  678         disclosed extends to, and includes, the verbal, as
  679         well as the written, and is described as follows:
  680         1. The health information in the custody of the
  681         following health care providers who have examined,
  682         evaluated, or treated the Patient in connection with
  683         injuries complained of after the alleged act of
  684         negligence: (List the name and current address of all
  685         health care providers). This authorization extends to
  686         any additional health care providers that may in the
  687         future evaluate, examine, or treat the Patient for the
  688         injuries complained of.
  689         2. The health information in the custody of the
  690         following health care providers who have examined,
  691         evaluated, or treated the Patient during a period
  692         commencing 2 years before the incident that is the
  693         basis of the accompanying presuit notice.
  694  
  695         (List the name and current address of such health care
  696         providers, if applicable.)
  697  
  698         C. This authorization does not apply to the
  699         following list of health care providers possessing
  700         health care information about the Patient because the
  701         Patient certifies that such health care information is
  702         not potentially relevant to the claim of personal
  703         injury or wrongful death which is the basis of the
  704         accompanying presuit notice.
  705  
  706         (List the name of each health care provider to whom
  707         this authorization does not apply and the inclusive
  708         dates of examination, evaluation, or treatment to be
  709         withheld from disclosure. If none, specify “none.”)
  710  
  711         D. The persons or class of persons to whom the
  712         Patient authorizes such health information to be
  713         disclosed or by whom such health information is to be
  714         used:
  715         1. Any health care provider providing care or
  716         treatment for the Patient.
  717         2. Any liability insurer or self-insurer
  718         providing liability insurance coverage, self
  719         insurance, or defense to any health care provider to
  720         whom presuit notice is given regarding the care and
  721         treatment of the Patient.
  722         3. Any consulting or testifying expert employed
  723         by or on behalf of (name of health care provider to
  724         whom presuit notice was given) his/her/its insurer(s),
  725         self-insurer(s), or attorney(s) regarding the matter
  726         of the presuit notice accompanying this authorization.
  727         4. Any attorney (including secretarial, clerical,
  728         or paralegal staff) employed by or on behalf of (name
  729         of health care provider to whom presuit notice was
  730         given) regarding the matter of the presuit notice
  731         accompanying this authorization.
  732         5. Any trier of the law or facts relating to any
  733         suit filed seeking damages arising out of the medical
  734         care or treatment of the Patient.
  735         E. This authorization expires upon resolution of
  736         the claim or at the conclusion of any litigation
  737         instituted in connection with the matter of the
  738         presuit notice accompanying this authorization,
  739         whichever occurs first.
  740         F. The Patient understands that, without
  741         exception, the Patient has the right to revoke this
  742         authorization in writing. The Patient further
  743         understands that the consequence of any such
  744         revocation is that the presuit notice under s.
  745         766.106(2), Florida Statutes, is deemed retroactively
  746         void from the date of issuance, and any tolling effect
  747         that the presuit notice may have had on any applicable
  748         statute-of-limitations period is retroactively
  749         rendered void.
  750         G. The Patient understands that signing this
  751         authorization is not a condition for continued
  752         treatment, payment, enrollment, or eligibility for
  753         health plan benefits.
  754         H. The Patient understands that information used
  755         or disclosed under this authorization may be subject
  756         to additional disclosure by the recipient and may not
  757         be protected by federal HIPAA privacy regulations.
  758  
  759         Signature of Patient/Representative: ....
  760         Date: ....
  761         Name of Patient/Representative: ....
  762         Description of Representative’s Authority: ....
  763         Section 12. Subsection (2) of section 766.206, Florida
  764  Statutes, is amended to read:
  765         766.206 Presuit investigation of medical negligence claims
  766  and defenses by court.—
  767         (2) If the court finds that the notice of intent to
  768  initiate litigation mailed by the claimant does is not comply in
  769  compliance with the reasonable investigation requirements of ss.
  770  766.201-766.212, including a review of the claim and a verified
  771  written medical expert opinion by an expert witness as defined
  772  in s. 766.202, or that the authorization accompanying the notice
  773  of intent required under s. 766.1065 is not completed in good
  774  faith by the claimant, the court shall dismiss the claim, and
  775  the person who mailed such notice of intent, whether the
  776  claimant or the claimant’s attorney, is shall be personally
  777  liable for all attorney’s fees and costs incurred during the
  778  investigation and evaluation of the claim, including the
  779  reasonable attorney’s fees and costs of the defendant or the
  780  defendant’s insurer.
  781         Section 13. Section 768.0981, Florida Statutes, is amended
  782  to read:
  783         768.0981 Limitation on actions against insurers, prepaid
  784  limited health service organizations, health maintenance
  785  organizations, hospitals, or prepaid health clinics.—An entity
  786  licensed or certified under chapter 395, chapter 624, chapter
  787  636, or chapter 641 is shall not be liable for the medical
  788  negligence of a health care provider with whom the licensed or
  789  certified entity has entered into a contract, other than an
  790  employee of such licensed or certified entity, unless the
  791  licensed or certified entity expressly directs or exercises
  792  actual control over the specific conduct that caused injury.
  793         Section 14. This act shall take effect July 1, 2011.

feedback