May 24, 2019
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       Florida Senate - 2010                                    SB 1474
       
       
       
       By Senator Thrasher
       
       
       
       
       8-01505-10                                            20101474__
    1                        A bill to be entitled                      
    2         An act relating to emergency health care providers;
    3         providing legislative findings and intent; amending s.
    4         768.28, F.S.; providing that certain emergency health
    5         care providers are agents of the state for purposes of
    6         sovereign immunity when acting pursuant to specified
    7         statutory obligations; requiring certain indemnity for
    8         the state from providers; providing penalties;
    9         providing definitions; providing applicability;
   10         providing an effective date.
   11  
   12  Be It Enacted by the Legislature of the State of Florida:
   13  
   14         Section 1. Legislative findings and intent.—The Legislature
   15  finds and declares it to be of vital importance that emergency
   16  services and care be provided by hospitals, physicians, and
   17  emergency medical services providers to every person in need of
   18  such care. The Legislature finds that providers of emergency
   19  services and care are critical elements in responding to
   20  disaster and emergency situations that may affect local
   21  communities, the state, and the country. The Legislature
   22  recognizes the importance of maintaining a viable system of
   23  providing for the emergency medical needs of the state’s
   24  residents and visitors. The Legislature and the Federal
   25  Government have required such providers of emergency medical
   26  services and care to provide emergency services and care to all
   27  persons who present themselves to hospitals seeking such care.
   28  The Legislature has further mandated that emergency medical
   29  treatment may not be denied by emergency medical services
   30  providers to persons who have or are likely to have an emergency
   31  medical condition. Such governmental requirements have imposed a
   32  unilateral obligation for providers of emergency services and
   33  care to provide services to all persons seeking emergency care
   34  without ensuring payment or other consideration for provision of
   35  such care. The Legislature also recognizes that providers of
   36  emergency services and care provide a significant amount of
   37  uncompensated emergency medical care in furtherance of such
   38  governmental interest. The Legislature finds that a significant
   39  proportion of the residents of this state who are uninsured or
   40  are Medicaid or Medicare recipients are unable to access needed
   41  health care on an elective basis because health care providers
   42  fear the increased risk of medical malpractice liability. The
   43  Legislature finds that such patients, in order to obtain medical
   44  care, are frequently forced to seek care through providers of
   45  emergency medical services and care. The Legislature finds that
   46  providers of emergency medical services and care in this state
   47  have reported significant problems with respect to the
   48  affordability of professional liability insurance, which is more
   49  expensive in this state than the national average. The
   50  Legislature further finds that a significant number of
   51  specialist physicians have resigned from serving on hospital
   52  staffs or have otherwise declined to provide on-call coverage to
   53  hospital emergency departments due to the increased exposure to
   54  medical malpractice liability created by treating such emergency
   55  department patients, thereby creating a void that has an adverse
   56  effect on emergency patient care. It is the intent of the
   57  Legislature that hospitals, emergency medical services
   58  providers, and physicians be able to ensure that patients who
   59  may need emergency medical services treatment and who present
   60  themselves to hospitals for emergency medical services and care
   61  have access to such needed services.
   62         Section 2. Subsection (9) of section 768.28, Florida
   63  Statutes, is amended to read:
   64         768.28 Waiver of sovereign immunity in tort actions;
   65  recovery limits; limitation on attorney fees; statute of
   66  limitations; exclusions; indemnification; risk management
   67  programs.—
   68         (9)(a) No officer, employee, or agent of the state or of
   69  any of its subdivisions shall be held personally liable in tort
   70  or named as a party defendant in any action for any injury or
   71  damage suffered as a result of any act, event, or omission of
   72  action in the scope of her or his employment or function, unless
   73  such officer, employee, or agent acted in bad faith or with
   74  malicious purpose or in a manner exhibiting wanton and willful
   75  disregard of human rights, safety, or property. However, such
   76  officer, employee, or agent shall be considered an adverse
   77  witness in a tort action for any injury or damage suffered as a
   78  result of any act, event, or omission of action in the scope of
   79  her or his employment or function. The exclusive remedy for
   80  injury or damage suffered as a result of an act, event, or
   81  omission of an officer, employee, or agent of the state or any
   82  of its subdivisions or constitutional officers shall be by
   83  action against the governmental entity, or the head of such
   84  entity in her or his official capacity, or the constitutional
   85  officer of which the officer, employee, or agent is an employee,
   86  unless such act or omission was committed in bad faith or with
   87  malicious purpose or in a manner exhibiting wanton and willful
   88  disregard of human rights, safety, or property. The state or its
   89  subdivisions shall not be liable in tort for the acts or
   90  omissions of an officer, employee, or agent committed while
   91  acting outside the course and scope of her or his employment or
   92  committed in bad faith or with malicious purpose or in a manner
   93  exhibiting wanton and willful disregard of human rights, safety,
   94  or property.
   95         (b) As used in this subsection, the term:
   96         1. “Employee” includes any volunteer firefighter.
   97         2. “Officer, employee, or agent” includes, but is not
   98  limited to:,
   99         a. Any health care provider when providing services
  100  pursuant to s. 766.1115, any member of the Florida Health
  101  Services Corps, as defined in s. 381.0302, who provides
  102  uncompensated care to medically indigent persons referred by the
  103  Department of Health, and any public defender or her or his
  104  employee or agent, including, among others, an assistant public
  105  defender and an investigator.
  106         b. Any emergency health care provider acting pursuant to
  107  obligations imposed by s. 395.1041 or s. 401.45, except for
  108  persons or entities that are otherwise covered under this
  109  section.
  110         (c)1. Emergency health care providers are agents of the
  111  state and shall indemnify the state for any judgments,
  112  settlement costs, or other liabilities incurred, only up to the
  113  liability limits in subsection (5).
  114         2. Any emergency health care provider who is licensed by
  115  the state and who fails to indemnify the state after reasonable
  116  notice and written demand to do so is subject to an emergency
  117  suspension order of the regulating authority having jurisdiction
  118  over the licensee.
  119         3. The Department of Health shall issue an emergency order
  120  suspending the license of any licensee under its jurisdiction or
  121  any licensee of a regulatory board within the Department of
  122  Health who fails to comply within 30 days following receipt by
  123  the department of a notice from the Division of Risk Management
  124  of the Department of Financial Services that the licensee has
  125  failed to satisfy his or her obligation to indemnify the state
  126  or enter into a repayment agreement with the state for costs
  127  under this subsection. The terms of such agreement must provide
  128  assurance of repayment of the obligation which is satisfactory
  129  to the state. For licensees within the Division of Medical
  130  Quality Assurance of the Department of Health, failure to comply
  131  with this paragraph constitutes grounds for disciplinary action
  132  under each respective practice act and under s. 456.072(l)(k).
  133         4. If the emergency health care provider is licensed under
  134  chapter 395 and fails to indemnify the state after reasonable
  135  notice and written demand to do so, any state funds payable to
  136  the licensed facility shall be withheld until the facility
  137  satisfies its obligation to indemnify the state or enters into a
  138  repayment agreement. The terms of such agreement must provide
  139  assurance of repayment of the obligation which is satisfactory
  140  to the state. In addition, the Agency for Health Care
  141  Administration shall impose an administrative fine, not to
  142  exceed $10,000 per violation of this paragraph.
  143         5. As used in this subsection, the term:
  144         a. “Emergency health care providers” includes all persons
  145  and entities providing services pursuant to obligations imposed
  146  by s. 395.1041 or s. 401.45, except those persons or entities
  147  that are otherwise covered under this section.
  148         b. “Emergency medical services” means all screenings,
  149  examinations, and evaluations by a physician, hospital, or other
  150  person or entity acting pursuant to obligations imposed by s.
  151  395.1041 or s. 401.45, and the care, treatment, surgery, or
  152  other medical services provided to relieve or eliminate the
  153  emergency medical condition, including all medical services to
  154  eliminate the likelihood that the emergency medical condition
  155  will deteriorate or recur without further medical attention
  156  within a reasonable period of time.
  157         (d)(c) For purposes of the waiver of sovereign immunity
  158  only, a member of the Florida National Guard is not acting
  159  within the scope of state employment when performing duty under
  160  the provisions of Title 10 or Title 32 of the United States Code
  161  or other applicable federal law; and neither the state nor any
  162  individual may be named in any action under this chapter arising
  163  from the performance of such federal duty.
  164         (e)(d) The employing agency of a law enforcement officer as
  165  defined in s. 943.10 is not liable for injury, death, or
  166  property damage effected or caused by a person fleeing from a
  167  law enforcement officer in a motor vehicle if:
  168         1. The pursuit is conducted in a manner that does not
  169  involve conduct by the officer which is so reckless or wanting
  170  in care as to constitute disregard of human life, human rights,
  171  safety, or the property of another;
  172         2. At the time the law enforcement officer initiates the
  173  pursuit, the officer reasonably believes that the person fleeing
  174  has committed a forcible felony as defined in s. 776.08; and
  175         3. The pursuit is conducted by the officer pursuant to a
  176  written policy governing high-speed pursuit adopted by the
  177  employing agency. The policy must contain specific procedures
  178  concerning the proper method to initiate and terminate high
  179  speed pursuit. The law enforcement officer must have received
  180  instructional training from the employing agency on the written
  181  policy governing high-speed pursuit.
  182         Section 3. This act shall take effect upon becoming a law,
  183  and applies to any cause of action accruing on or after that
  184  date.

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