Senate Medical Malpractice Proposal
as of Wednesday, July 16, 2003
Contains revised findings relating to necessity to
address identified medical malpractice liability situation. Changes
relate to findings #6 and 9 in SB 2C.
Requires plaintiffs to provide AHCA with copies of
complaints against facilities, to review; AHCA to cross-check
complaints to see if hospital filed adverse incident report and if
conduct is disciplinable. The State needs more information and AHCA
gets to cross check against the complaint to see if hospital filed
an adverse incident report.
Broadens immunity for hospitals and staff who take
disciplinary actions against medical staff. Gives greater immunity.
Encourages staff discipline.
Repeals 24 hour reporting requirement to AHCA. AHCA
does nothing with this document now. It is duplicative. This reduces
bureaucracy.
Repeals public records exemption for 24 hour adverse
incident reports that are repealed by Sec. 4. If we get rid of 4
above, we don't need exemption.
Each health facility required to have system to
ensure patient safety, including a patient safety officer and
patient safety committee to review facility safety measures and
implement the facility patient safety plans. Increases patient
safety and improves paitient outcomes.
Patients must be notified in person if harmed. Do
not require hospital risk managers to do notification. (Currently
that isn't required, ie., a patient with a sponge left in need not
be told, in person.)
Provides civil immunity for participants in facility
boards and committees that review professional and institutional
quality of care and patient safety. This enhances hospital peer
review without fear of retribution.
Establishes patient safety data privilege and
protects data from discovery and introduction as evidence. Allows
for data to be collected and kept.
Requires misdiagnosed conditions to be part of
existing required 2-hour continuing education in patient safety for
physicians and physician assistants. Doctors will be taught every
two years in CME classes what current misdiagnosis problems exist.
Removes limitation of no more than 10% licensure fee
increase for practitioners. Boards could now increase fees to cover
actual costs.
Applicants for initial licensure or renewal of
licensure must submit information re: "relevant professional
qualifications" to DOH. Without good data, future
"crisis" will not have information that we needed and
couldn't get. Also, provides more information to patients about
their doctor.
Expands reporting requirements for physician
profiles on Internet.
--Requires DOH to update profiles within 30 days
--Requires reporting on profiles of MDs DOs of claims exceeding $100K
within last 10 years.
(Retains existing $5K requirement
for Podiatrists.)
--Requires practitioners to submit updates to profile within 15 days.
--Requires claims and bankruptcy info to be part of physician profile
within 30 days after receipt.
This enhances practitioner profiles so patients
have more information for choices.
Requires MDs, DOs & Podiatrists to report info
on claims exceeding $50K & Dentists to report claims exceeding
$25 to DOH. This increase reflects inflationary charges. It also
focuses attention on the most serious cases.
Higher threshold of $50K for initiating disciplinary
investigations of repeated malpractice by MD's, Osteopaths &
Podiatrists, with $25K threshold for Dentists. See #14 above.
Allows DOH to subpoena patient records to facilitate
handling of disciplinary cases. If patient is uncooperative and
won't release records, department can subpoena for information.
Attorney costs included in penalty assessments
(including costs associated with attorney's time). Boards can access
full costs of prosecution against respondent.
Provides additional time to resolve cases before
they are referred to administrative hearings. Changes from 15 to 45
days to allow 30 more days for settlement.
Authorizes DOH to investigate liability info within
6 years if claims exceeded $50K. Grants additional authority to
department to investigate closed claims.
First offense citations are not required to be
reported to national databases. Excludes adverse incidents from
citation. Issuing a citation does not become a reportable event to
national database.
Similar to HB 63B, 1st Eng., but does not
specifically exclude adverse incidents. Allows board to establish
standards of care violations that can be mediated. Encourages
mediation of disciplinary cases.
Requires DOH to suspend license of MDs and DOs who
fail to pay judgment or settlement within 30 days
--Requires escrow funds not be used for litigation
costs (see Insurance provisions, below).
License of bare doctor is suspended if they don't
pay the judgement or work out a payment schedule. Can't use
"self insurance" funds to pay attorney costs.
Requires each final settlement to include statement
that it is not an admission of failure to meet standard of care.
Facilitates "no contest" settlements without admission of
guilt.
Requires Admin Law Judge or Board to state whether
physician committed gross or repeated malpractice. Gives
instructions to administrative law judges.
Creates emergency disciplinary procedures for gross
or repeated malpractice by MD's and Osteopaths--and for Podiatrists.
Allows for emergency procedures against doctors for a quick
suspension.
Requires Div. of Administrative Hearings to
designate at least 2 Administrative Law Judges with health care
experience to preside over disciplinary actions. Assures DOAH has
properly informed judges.
College and university health care programs to
include training in patient safety. The more training, hopefully,
the less incidents.
Study by AHCA of information relevant to consumers
for choosing hospitals. Replaces the hospital "report
card."
Requires study by Agency for Health Care
Administration of options to implement a Patient Safety Authority.
Allows for a study on "Center of Excellence" authority and
need.
Foster development of statewide electronic
infrastructure to share data. Creates study of closed claim data.
Requires AHCA to inventory hospitals regarding
implementation of computerized physician medication ordering systems
and defines “medication error.” Implementation would provide a
check & balance on hospital pharmacies.
Allows a group of 10 or more health care providers
to form a commercial self insurance fund.
Invites self insurance funds for those capable. This
should create competition.
Provides for annual rate filings. Need to justify
rates every year.
Requires rate filing effective 1/1/2004 with rate
adjustments using presumptive factor determined by OIR; insurer may
file deviations from presumptive rate change but has burden of
justifying deviation, which is subject to prior approval of OIR.
Everyone has to do a new rate filing considering changes made in
this bill.
Deletes allowance for medical malpractice insurer to
submit a rate filing to arbitration.
Precludes bad faith and punitive damage losses in
rate base. Provides for medical malpractice rating standards re:
excessive rates and requires discounts or surcharges based on
providers' loss experience. Prevents bad faith judgments and
punitive damage awards in this rate base. They were bad business
decisions by the company - not the insureds.
Deletes current statutory prohibition on creation of
self insurance trust funds. --Provides for regulation by OIR. (See
#32)
Coverage amount to demonstrate financial
responsibility can not be used for defense costs of claim. Insurance
coverage requires purchase for prior years of service. Can't use
escrow to pay lawyers (See #22)
Requires study by OPPAGA re: modifying NICA
(Neurological Injury Compensation Act) eligibility.
--Also provides changes in NICA regarding
applicability, eligibility, procedure, administration, expenses
and assessments. Potentially increases OB's use of NICA
system, if warranted.
Requires insurers to provide 90-days (instead of
current 60-days) notice of a cancellation or non-renewal for any
reason. Provides 30 additional days for insured to get new
insurance.
Requires insurer to notify policyholder 60 days
prior to effective date of a rate increase.
Requires advanced warning to insureds of a pending
rate increase.
Allows insurance contracts to permit MD's and DO's
to veto any settlement offer within policy limits. Repeals s.
627.4147(1)(b), thereby allowing physicians to make decision, rather
than insurers, as to whether case should be tried.
--Prohibits settlement outside policy limits without
physician's permission. Provides for two types of policies including
a "Doctor take Control" policy.
Freezes rates and premiums at July 1, 2003 rates
until new filing occurs as required by the bill. Replaces our rate
roll back. If anyone wants to improve roll back language, we're
amenable.
Study feasibility of allowing public counsel to
review rate filings. Consider what other states are using and doing.
Requires reporting of additional closed claims
information, including dismissals. Current data doesn't include
dismissals. Now it would. Allows Department of Health electronic
access to OIR.
--Requires reporting to OIR & removes reporting
to DOH
--Requires OIR to provide DOH electronic access to all information.
Requires OIR to annually publish an analysis of
closed claim data and financial reports of med mal insurers. People
have the right to know.
Requires Financial Services Commission to adopt
rules to analyze and evaluate claim data.
Someone needs to decide what we need and what form
we need it in.
Requires and increases the fine for insurers who
violate the requirements for reporting of professional liability
claims. Insurance companies could be penalized under the provision
for lack of proper reporting.
Information reported to the National Practitioners
Data Bank must also be reported to OIR for review. Enhances
available data
Maintains third party causes of action and allows
insureds to assign a cause of action, contains factors for
consideration in determining bad faith, contains time-driven
(90+210) and information-driven avenues, and prohibits unnecessary
and inappropriate delays by both parties. If plaintiff wants to move
faster he can prohibit either side from "tricking" the
process
Specifies that a claim for medical malpractice
involving a vulnerable adult must be brought under chapter 766
(medical malpractice statute), in lieu of ch. 415. Rep. Dudley felt
strongly about this issue and we're giving it to him. (see exhibit B
attached).
Provides that an HMO shall not be liable for any
tortious action of a health care provider with whom the licensed
entity has entered into a contract unless the HMO directed or
actually controlled the specific conduct that caused the injury.
Speaker Byrd seemed to want this. We have some reservations but, if
he wants it, we're prepared to give it to him.
Requires presuit notice to include list of health
care providers and medical records used by a corroborating medical
expert.
--Provides for written questions during presuit
discovery.
--Provides additional sanctions for failing to comply with the
presuit process.
--Provides increased presuit discovery.
--Provides for presuit mediation.
--Repeals 766.106 relating to arbitration. This will eliminate any
"frivolous" lawsuits in conjunction with bad faith.
Provides for discovery of opinion and affidavit of
presuit expert. Gets more information out sooner to the defense.
Provides for presuit screening panels.
--Panel includes 3 physicians and 1 attorney who
serves as facilitator.
--Provides for mandatory staging of presuit investigatory
activities. (as suggested by President of American Medical
Association to the President of the Florida Senate)
Expert must have similar credentials; If the
defendant is a specialist, the expert must have devoted time within
the last 3 years to clinical practice, teaching, or research, or
within the last 5 years if defendant is a general practitioner.
--The trial court may qualify or disqualify the
expert for other non-statutory reasons.
--Changes definition of "health care provider" to increase
the number of entities captured under ch. 766. Reduces
probability of "hired guns" and enhances predictable
testimony.
Clarifies that defendant must notify claimant prior
to interviewing a treating physician and
allow parties or their representatives to be present. Allows for
non-subpoenaed testimony but
all parties need to be alerted to the event.
Requires in-person mediation within 120 days after
filing of suit; allows extensions. This
corresponds with track 2 of bad faith.
1. Caps-- Non-emergency situation defendants
separated into 3 categories
Category 1 = physicians and health care
practitioners (non ER)Category 2 = hospitals, facilities, hospices
Category 3 = managed care entities, clinics, labs,
critical stabilization units (CSU's)
Aggregate defendants within category
Multiple claimants, but regardless of number, total cap for all
claimants is $1 million
Pierceable under very narrow circumstances (multiple prong test)(See
exhibit D attached) ceiling if the cap is pierced and multiple
claimants = $1 million (in total!) setoffs within category. (see
exhibit E attached).
Category 2: noneconomic damages cannot exceed
$750,000 (all is same as above, except numbers)
aggregate defendants within category
multiple claimants, but regardless of number, total cap for all
claimants is $1.5 million
pierceable under very narrow circumstances (multiple prong
test)
ceiling if the cap is pierced and multiple claimants = $1.5 million
s
etoffs within category
Category 3: noneconomic damages cannot exceed
$750,000 (all is same, except numbers) aggregate defendants within
category
multiple claimants, but regardless of number, total
cap for all claimants is $1.5 million
pierceable under very narrow circumstances (multiple prong test)
ceiling if the cap is pierced and multiple claimants = $1.5 million
set offs within category
2. Emergency Care-- Caps applicable to emergency
medical care provided to a patient with whom the health care
practitioner has not provided medical care or treatment to recently
for the same or similar medical condition, includes on-call
specialists and consulting practitioners pre-stabilization
Practitioners: noneconomic damages cannot exceed
$250,000 aggregate practitioner defendants - $250,000 is max
collectively for all doctors multiple claimants, but regardless of
number, total cap for all claimants is $1 million not pierceable at
all full setoffs - Hospitals get to deduct doctor payment from their
award.
Facility: noneconomic damages cannot exceed $750,000
aggregate facility defendants = can't get more than $750,000
multiple claimants, but regardless of number, total cap for all
claimants is $1 million not pierceable - for any reason full setoffs
Amends definitions section to clarify that damages
recoverable in med mal arbitration are limited by the Wrongful Death
Act. Necessary because of St. Mary's decision.
Removes unlimited recovery of damages provision from
medical malpractice arbitration in cases where defendant refuses to
arbitrate. Clarification language. Damages can't go beyond cap
limit.
Provides for itemized verdicts in medical
malpractice cases. Necessary to implement the setoff provisions.
Juries must differentiate between economic and non-economic damages.
Preserves sovereign immunity and the abrogation of
certain joint and several liability in section 766.112. Those that
have sovereign immunity now, will still have it.
Expands civil immunity to providers of emergency
assistance unrelated to their practices. This is King's "code
blue" fix. If you give aid to someone you don't know or treat,
you can't be sued if an emergency, does not limit emergency care to
the E.R.
Revises requirements for the Florida High School
Activities Association by-laws for participation in interscholastic
athletics to require that an evaluation and history form incorporate
recommendations of the American Heart Association for participation
in cardiovascular screening. Deletes a requirement for the physician
to certify that the student meets the minimum standards established
by the association. Encourages free or reduced cost physicals for
athletic participants.
Appropriates: 7 positions and $454,766 to DOH to
fund presuit office, 7 positions and $687,786 for practitioner
regulation, and 5 positions and $452,122 for facility regulation. If
presuit panel stays, we need this.
Reenacts certain provisions to conform
cross-references. Self-explanatory.
Provides severability of provisions of bill if any
found invalid. Self explanatory.
Provides for interpretation of the act with laws
enacted during the regular session.
Safeguards whatever we did in Regular Session.
September 1, 2003, except as otherwise provided.
Substantive changes to affect only new
causes of action accuring (injuries) on or after the effective date
of the act. Procedural
changes to take effect September 1 for all new notices of intent to
litigate served. This is still
an "open" issue. Procedural aspects go into effect
immediately.
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