CS/CS/CS/CS/HB 479 Relating to Medical Malpractice Sent to Florida Governor Rick Scott For Action

 

CS/CS/CS/CS/HB 479 relating to Medical Malpractice was sent to Florida Governor Rick Scott today, June 13, 2011.  

The Governor has 15 days to act on the bill, or it will become law without his signature.

A complete summary of the bill is below.

 

Should you have any questions or comments, please contact Colodny Fass.

 

CS/CS/CS/CS/HB 479 Relating to Medical Malpractice

Sponsored by State Representative Mike Horner (R-Kissimmee), CS/CS/CS/CS/HB 479 makes changes to numerous statutes relating to medical malpractice litigation.

Following is a section-by-section analysis of the legislation: 

 

Section 1.  Creates Section 458.3175, F.S., which requires the Florida Department of Health (“DOH”) to issue a certificate authorizing a physician who holds an active and valid license to practice medicine in another state or a province of Canada to provide expert testimony in Florida, if the physician submits to the DOH a complete registration application containing specified information and the required application fee.  The DOH shall approve an application for an expert witness certificate within 10 business days after receipt of the completed application and fee if the applicant holds an active license to practice medicine in another state or province of Canada and has not had a previous expert witness certificate revoked by the Florida Board of Medicine (“Board”).  An application is approved by default if the DOH does not act upon the application within the required period.  Requires that a physician notify the DOH in writing of his or her intent to rely on a certificate approved by default.  An expert witness certificate is valid for two years after the date of issuance.

An expert witness certificate authorizes the physician to whom the certificate is issued to only:

• Provide a verified written medical expert opinion as provided in Section 766.203, F.S.
• Provide expert testimony about the prevailing professional standard of care in connection with medical negligence litigation pending in Florida against a physician licensed under Chapters 458 or 459, F.S.

An expert witness certificate does not authorize a physician to engage in the practice of medicine as defined in Section 458.305, F.S.  A physician who has been issued an expert witness certificate and does not otherwise practice medicine in Florida is not required to obtain a license, or pay any license fees.  An expert witness certificate shall be treated as a license in any disciplinary action, and the holder of such certificate shall be subject to discipline by the Board.

 

Section 2.  Amends Section 458.331, F.S. to include that providing deceptive or fraudulent expert witness testimony related to the practice of medicine constitutes grounds for a denial of a license or disciplinary action.  

 

 

 

Section 3.  Amends Section 458.351, F.S. to provide that the Board shall adopt rules establishing a standard informed consent form setting forth the recognized specific risks related to cataract surgery; that a patient’s informed consent is not executed until the patient, or a person authorized by the patient to give consent, and a competent witness sign the form adopted by the Board; that an incident resulting from recognized specific risks described in the signed consent form is not considered an adverse incident for purposes of Section 395.0197, F.S. and this section; that, in a civil action or administrative proceeding against a physician based on his or her alleged failure to disclose the risks of cataract surgery, a patient’s informed consent executed as provided on the form adopted by the Board is admissible as evidence and creates a rebuttable presumption that the physician properly disclosed the risks.

Section 4.  Creates Section 459.0066, F.S., which contains provisions with respect to the issuance of expert witness certificates to physicians practicing osteopathic medicine, similar to the provisions described in Section 1 above.

Section 5.  Amends Section 459.015, F.S. to include that providing deceptive or fraudulent expert witness testimony related to the practice of osteopathic medicine constitutes grounds for a denial of a license or disciplinary action.

Section 6.  Creates Section 466.005, F.S., which contains provisions with respect to the issuance of expert witness certificates to dentists, similar to the provisions described in Section 1 above.

Section 7.  Amends Section 466.028, F.S. to include that providing deceptive or fraudulent expert witness testimony related to the practice of dentistry constitutes grounds for a denial of a license or disciplinary action.

Section 8.  Amends Section 459.026, F.S., which contains provisions relating to the standard informed consent form for specified risks of cataract surgery with respect to osteopathic physicians, similar to those described in Section 3 above.

Section 9.  Amends Section 627.4171, F.S., removing provisions of law that prohibit insurance policies to contain a clause giving the insured the exclusive right to veto any offer for admission of liability and for arbitration made pursuant to Section 766.106, F.S., settlement offer, or offer of judgment, when such offer is within the policy limits, and requiring that policies clearly state whether or not the insured has such veto rights.

 

 

Section 10.  Amends Section 766.102, F.S., providing, for purposes of subsection (3) of the statute, definitions of the terms “insurer,” “reimbursement determination,” and “reimbursement policies,” and provides that any records, policies or testimony of an insurer’s reimbursement policies or reimbursement policies or reimbursement determination regarding the care provided to the plaintiff are not admissible in any medical negligence action.  Further provides that a person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records, and that if a licensed physician or dentist is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under Chapters 458, 459 or 466, F.S., or possess a valid expert witness certificate. Also provides that a health care provider’s failure to comply with or breach of any federal requirement is not admissible as evidence in any medical negligence case in Florida.

 

 

Section 11.  Amends Section 766.106, F.S. relating to pre-suit notification and discovery.

Section 12.  Creates Section 766.1065, F.S., providing that pre-suit notice of intent to initiate litigation for medical negligence be accompanied by an authorization for release of protected health information in a form specified by this section, and that pre-suit notice is void if the required authorization does not accompany the pre-suit notice and other materials required by law.

Section 13.  Amends Section 766.110, F.S., providing that, in order to ensure comprehensive risk management for diagnosis of disease, a health care facility, including a hospital or ambulatory surgical center may use scientific diagnostic disease methodologies that use information regarding specific diseases in health care facilities and what are adopted by the facility’s medical review committee.

Section 14.  Amends Section 766.206, F.S., relating to pre-suit investigation of medical negligence claims.

Section 15.  Amends Section 768.135, F.S., relating to volunteer team physicians, providing that a volunteer team physician is not liable for any civil damages as a result of any act or failure to act in providing or arranging for further medical treatment unless the care or treatment was rendered in a wrongful manner, and defines the term “wrongful manner” as being in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property.

Section 16.  Provides that CS/CS/CS/CS/HB 479 shall take effect October 1, 2011 and applies to causes of action accruing on, or after that date.

 

 

 

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