CHAPTER 766

766.101 Medical review committee, immunity from liability. (1) As used in this section: (a) The term “medical review committee” or “committee” means: 1.a. A committee of a hospital or ambulatory surgical center licensed under chapter 395 or a health maintenance organization certificated under part I of chapter 641; b. A committee of a physician-hospital organization, a provider-sponsored organization, or an integrated delivery system; c. A committee of a state or local professional society of health care providers; d. A committee of a medical staff of a licensed hospital or nursing home, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home; e. A committee of the Department of Corrections or the Correctional Medical Authority as created under s. 945.602, or employees, agents, or consultants of either the department or the authority or both; f. A committee of a professional service corporation formed under chapter 621 or a corporation organized under part I of chapter 607 or chapter 617, which is formed and operated for the practice of medicine as defined in s. 458.305(3), and which has at least 25 health care providers who routinely provide health care services directly to patients; g. A committee of the Department of Children and Families which includes employees, agents, or consultants to the department as deemed necessary to provide peer review, utilization review, and mortality review of treatment services provided pursuant to chapters 394, 397, and 916; h. A committee of a mental health treatment facility licensed under chapter 394 or a community mental health center as defined in s. 394.907, provided the quality assurance program operates pursuant to the guidelines that have been approved by the governing board of the agency; i. A committee of a substance abuse treatment and education prevention program licensed under chapter 397 provided the quality assurance program operates pursuant to the guidelines that have been approved by the governing board of the agency; j. A peer review or utilization review committee organized under chapter 440; k. A committee of the Department of Health, a county health department, healthy start coalition, or certified rural health network, when reviewing quality of care, or employees of these entities when reviewing mortality records; or l. A continuous quality improvement committee of a pharmacy licensed pursuant to chapter 465, which committee is formed to evaluate and improve the quality of health care rendered by providers of health service, to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care, or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area; or 2. A committee of an insurer, self-insurer, or joint underwriting association of medical malpractice insurance, or other persons conducting review under s. 766.106. (b) The term “health care providers” means physicians licensed under chapter 458, osteopathic physicians licensed under chapter 459, podiatric physicians licensed under chapter 461, optometrists licensed under chapter 463, dentists licensed under chapter 466, chiropractic physicians licensed under chapter 460, pharmacists licensed under chapter 465, or hospitals or ambulatory surgical centers licensed under chapter 395. (2) A medical review committee of a hospital or ambulatory surgical center or health maintenance organization shall screen, evaluate, and review the professional and medical competence of applicants to, and members of, medical staff. As a condition of licensure, each health care provider shall cooperate with a review of professional competence performed by a medical review committee. (3)(a) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee, or any health care provider furnishing any information, including information concerning the prescribing of substances listed in s. 893.03(2), to such committee, or any person, including any person acting as a witness, incident reporter to, or investigator for, a medical review committee, for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member or health care provider acts without intentional fraud. (b) The provisions of this section do not affect the official immunity of an officer or employee of a public corporation. (4) Except as provided in subsection (3), this section shall not be construed to confer immunity from liability on any professional society or hospital or upon any health professional while performing services other than as a member of a medical review committee or upon any person, including any person acting as a witness, incident reporter to, or investigator for, a medical review committee, for any act or proceeding undertaken or performed outside the scope of the functions of such committee. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been enacted. (5) The investigations, proceedings, and records of a committee as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil or administrative action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his or her knowledge, but the said witness cannot be asked about his or her testimony before such a committee or opinions formed by him or her as a result of said committee hearings. (6) In the event that the defendant prevails in an action brought by a health care provider against any person that initiated, participated in, was a witness in, or conducted any review as authorized by this section, the court shall award reasonable attorney’s fees and costs to the defendant. (7)(a) It is the intent of the Legislature to encourage medical review committees to contribute further to the quality of health care in this state by reviewing complaints against physicians in the manner described in this paragraph. Accordingly, the Department of Health may enter into a letter of agreement with a professional society of physicians licensed under chapter 458 or chapter 459, under which agreement the medical or peer review committees of the professional society will conduct a review of any complaint or case referred to the society by the department which involves a question as to whether a physician’s actions represented a breach of the prevailing professional standard of care. The prevailing professional standard of care is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. The letter of agreement must specify that the professional society will submit an advisory report to the department within a reasonable time following the department’s written and appropriately supported request to the professional society. The advisory report, which is not binding upon the department, constitutes the professional opinion of the medical review committee and must include: 1. A statement of relevant factual findings. 2. The judgment of the committee as to whether the physician’s actions represented a breach of the prevailing professional standard of care. (b) Cases involving possible criminal acts may not be referred to medical review committees, and emergency action by the department needed to protect the public against immediate and substantial threats must not be delayed by any referral of the case to a medical review committee. The department shall refer cases pursuant to this subsection prior to making determinations of probable cause. (c) So as not to inhibit the willing and voluntary service of professional society members on medical review committees, the department shall use advisory reports from medical committees as background information only and shall prepare its own case using independently prepared evidence and supporting expert opinion for submission to the probable cause panel of a regulatory board formed under chapter 458 or chapter 459. Proceedings of medical review committees are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution, and any advisory reports provided to the department by such committees are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, regardless of whether probable cause is found. The medical review committee advisory reports and any records created by the medical review committee are not subject to discovery or introduction into evidence in any disciplinary proceeding against a licensee. Further, no person who voluntarily serves on a medical review committee or who investigates a complaint for the committee may be permitted or required to testify in any such disciplinary proceeding as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof. However, nothing in this section shall be construed to mean that information, documents, or records otherwise available and obtained from original sources are immune from discovery or use in any such disciplinary proceeding merely because they were presented during proceedings of a peer review organization or committee. Members of medical review committees shall assist the department in identifying such original sources when possible. (d) Professional society representatives who participate in medical reviews and preparation of advisory reports pursuant to this subsection will be reimbursed for per diem and travel expenses consistent with the provisions of s. 112.061 and as provided in the written agreement described in paragraph (a). (e) There shall be no monetary liability on the part of, and no cause of action shall arise against, any state or local professional society of physicians licensed under chapter 458 or chapter 459, or any member thereof, acting pursuant to the provisions of this subsection without intentional fraud or malice. Further, this subsection does not supersede the provisions of paragraph (3)(a) relating to immunity from liability for medical review committees. (8) No cause of action of any nature by a person licensed pursuant to chapter 458, chapter 459, chapter 461, chapter 463, part I of chapter 464, chapter 465, or chapter 466 shall arise against another person licensed pursuant to chapter 458, chapter 459, chapter 461, chapter 463, part I of chapter 464, chapter 465, or chapter 466 for furnishing information to a duly appointed medical review committee, to an internal risk management program established under s. 395.0197, to the Department of Health or the Agency for Health Care Administration, or to the appropriate regulatory board if the information furnished concerns patient care at a facility licensed pursuant to part I of chapter 395 where both persons provide health care services, if the information is not intentionally fraudulent, and if the information is within the scope of the functions of the committee, department, or board. However, if such information is otherwise available from original sources, it is not immune from discovery or use in a civil action merely because it was presented during a proceeding of the committee, department, or board. History. — ss. 1, 2, ch. 72-62; s. 1, ch. 73-50; s. 1, ch. 77-461; s. 285, ch. 79-400; s. 3, ch. 80-353; s. 8, ch. 85-175; s. 1, ch. 87-342; s. 47, ch. 88-277; s. 34, ch. 88-392; s. 25, ch. 88-398; s. 4, ch. 89-281; s. 35, ch. 89-289; s. 16, ch. 89-374; s. 9, ch. 90-341; s. 92, ch. 92-289; s. 37, ch. 93-39; s. 1, ch. 93-155; s. 1, ch. 93-158; s. 1, ch. 94-73; s. 244, ch. 94-218; s. 6, ch. 95-140; s. 422, ch. 96-406; s. 1798, ch. 97-102; s. 80, ch. 97-237; s. 61, ch. 97-264; s. 31, ch. 98-89; ss. 228, 295, ch. 98-166; s. 23, ch. 98-191; s. 6, ch. 99-186; s. 143, ch. 2000-318; s. 86, ch. 2001-277; s. 50, ch. 2009-132; s. 294, ch. 2014-19; s. 73, ch. 2014-209. Note. — Former s. 768.131; s. 768.40. 766.1015 Civil immunity for members of or consultants to certain boards, committees, or other entities. (1) Each member of, or health care professional consultant to, any committee, board, group, commission, or other entity shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of his or her duties while serving as a member of or consultant to such committee, board, group, commission, or other entity established and operated for purposes of quality improvement review, evaluation, and planning in a state-licensed health care facility. Such entities must function primarily to review, evaluate, or make recommendations relating to: (a) The duration of patient stays in health care facilities; (b) The professional services furnished with respect to the medical, dental, psychological, podiatric, chiropractic, or optometric necessity for such services; (c) The purpose of promoting the most efficient use of available health care facilities and services; (d) The adequacy or quality of professional services; (e) The competency and qualifications for professional staff privileges; (f) The reasonableness or appropriateness of charges made by or on behalf of health care facilities; or (g) Patient safety, including entering into contracts with patient safety organizations. (2) Such committee, board, group, commission, or other entity must be established in accordance with state law, or in accordance with requirements of an applicable accrediting organization whose standards incorporate comparable regulations required by this state, established and duly constituted by one or more public or licensed private hospitals or behavioral health agencies, or established by a governmental agency. To be protected by this section, the act, decision, omission, or utterance may not be made or done in bad faith or with malicious intent. History. — s. 9, ch. 2003-416; s. 2, ch. 2004-7; s. 16, ch. 2013-93. 766.1016 Patient safety data privilege. (1) As used in this section, the term: (a) “Patient safety data” means reports made to patient safety organizations, including all health care data, interviews, memoranda, analyses, root cause analyses, products of quality assurance or quality improvement processes, corrective action plans, or information collected or created by a health care facility licensed under chapter 395, or a health care practitioner as defined in s. 456.001(4), as a result of an occurrence related to the provision of health care services which exacerbates an existing medical condition or could result in injury, illness, or death. (b) “Patient safety organization” means any organization, group, or other entity that collects and analyzes patient safety data for the purpose of improving patient safety and health care outcomes and that is independent and not under the control of the entity that reports patient safety data. (2) Patient safety data shall not be subject to discovery or introduction into evidence in any civil or administrative action. However, information, documents, or records otherwise available from original sources are not immune from discovery or use in any civil or administrative action merely because they were also collected, analyzed, or presented to a patient safety organization. Any person who testifies before a patient safety organization or who is a member of such a group may not be prevented from testifying as to matters within his or her knowledge, but he or she may not be asked about his or her testimony before a patient safety organization or the opinions formed by him or her as a result of the hearings. (3) Unless otherwise provided by law, a patient safety organization shall promptly remove all patient-identifying information after receipt of a complete patient safety data report unless such organization is otherwise permitted by state or federal law to maintain such information. Patient safety organizations shall maintain the confidentiality of all patient-identifying information and may not disseminate such information, except as permitted by state or federal law. (4) The exchange of patient safety data among health care facilities licensed under chapter 395, or health care practitioners as defined in s. 456.001(4), or patient safety organizations which does not identify any patient shall not constitute a waiver of any privilege established in this section. (5) Reports of patient safety data to patient safety organizations do not abrogate obligations to make reports to the Department of Health, the Agency for Health Care Administration, or other state or federal regulatory agencies. (6) An employer may not take retaliatory action against an employee who in good faith makes a report of patient safety data to a patient safety organization. History. — s. 10, ch. 2003-416. 766.102 Medical negligence; standards of recovery; expert witness. (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. (2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider. (b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103. (3)(a) As used in this subsection, the term: 1. “Insurer” means any public or private insurer, including the Centers for Medicare and Medicaid Services. 2. “Reimbursement determination” means an insurer’s determination of the amount that the insurer will reimburse a health care provider for health care services. 3. “Reimbursement policies” means an insurer’s policies and procedures governing its decisions regarding health insurance coverage and method of payment and the data upon which such policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data as defined in s. 766.1016. (b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider. (4) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care. (5) 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 meets the following criteria: (a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must: 1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and 2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to: a. The active clinical practice of, or consulting with respect to, the same specialty; b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty. (b) If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the date of the occurrence that is the basis for the action to: 1. The active clinical practice or consultation as a general practitioner; 2. The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or 3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine. (c) If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to: 1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered; 2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or 3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered. (6) A physician licensed under chapter 458 or chapter 459 who qualifies as an expert witness under subsection (5) and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical negligence action with respect to the standard of care of such medical support staff. (7) Notwithstanding subsection (5), in a medical negligence action against a hospital, a health care facility, or medical facility, a person may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care among hospitals, health care facilities, or medical facilities of the same type as the hospital, health care facility, or medical facility whose acts or omissions are the subject of the testimony and which are located in the same or similar communities at the time of the alleged act giving rise to the cause of action. (8) If a health care provider described in subsection (5), subsection (6), or subsection (7) is providing evaluation, treatment, or diagnosis for a condition that is not within his or her specialty, a specialist trained in the evaluation, treatment, or diagnosis for that condition shall be considered a similar health care provider. (9)(a) In any action for damages involving a claim of negligence against a physician licensed under chapter 458, osteopathic physician licensed under chapter 459, podiatric physician licensed under chapter 461, or chiropractic physician licensed under chapter 460 providing emergency medical services in a hospital emergency department, the court shall admit expert medical testimony only from physicians, osteopathic physicians, podiatric physicians, and chiropractic physicians who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department. (b) For the purposes of this subsection: 1. The term “emergency medical services” means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death. 2. “Substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in hospital emergency departments in the same or similar localities where the alleged negligence occurred. (10) In any action alleging medical negligence, an expert witness may not testify on a contingency fee basis. (11) Any attorney who proffers a person as an expert witness pursuant to this section must certify that such person has not been found guilty of fraud or perjury in any jurisdiction. (12) If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 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 chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005. (13) 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 this state. History. — s. 12, ch. 76-260; s. 8, ch. 77-64; s. 1, ch. 77-174; s. 10, ch. 85-175; s. 78, ch. 88-1; s. 30, ch. 91-110; s. 1149, ch. 97-102; ss. 229, 296, ch. 98-166; s. 48, ch. 2003-416; s. 153, ch. 2004-5; s. 10, ch. 2011-233; s. 2, ch. 2013-108. Note. — Former s. 768.45. 766.103 Florida Medical Consent Law. (1) This section shall be known and cited as the “Florida Medical Consent Law.” (2) In any medical treatment activity not covered by s. 768.13, entitled the “Good Samaritan Act,” this act shall govern. (3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, dentist licensed under chapter 466, advanced practice registered nurse licensed under s. 464.012, or physician assistant licensed under s. 458.347 or s. 459.022 in an action brought for treating, examining, or operating on a patient without his or her informed consent when: (a)1. The action of the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced practice registered nurse, or physician assistant in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained; and 2. A reasonable individual, from the information provided by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced practice registered nurse, or physician assistant, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or (b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced practice registered nurse, or physician assistant in accordance with the provisions of paragraph (a). (4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent. (b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent. History. — s. 11, ch. 75-9; s. 21, ch. 85-175; s. 1150, ch. 97-102; s. 62, ch. 97-264; ss. 230, 297, ch. 98-166; s. 2, ch. 2007-176; s. 11, ch. 2016-145; s. 78, ch. 2018-106. Note. — Former s. 768.132; s. 768.46. 766.104 Medical negligence cases; reasonable investigation required before filing. (1) No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence. If the court determines that such certificate of counsel was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court shall award attorney’s fees and taxable costs against claimant’s counsel, and shall submit the matter to The Florida Bar for disciplinary review of the attorney. (2) Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $42 from which the clerk shall remit $4.50 to the Department of Revenue for deposit into the General Revenue Fund, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run. (3) For purposes of conducting the investigation required by this section, and notwithstanding any other provision of law to the contrary, subsequent to the death of a person and prior to the administration of such person’s estate, copies of all medical reports and records, including bills, films, and other records relating to the care and treatment of such person that are in the possession of a health care practitioner as defined in s. 456.001 shall be made available, upon request, to the spouse, parent, child who has reached majority, guardian pursuant to chapter 744, surrogate or proxy pursuant to chapter 765, or attorney in fact of the deceased pursuant to chapter 709. A health care practitioner complying in good faith with the provisions of this subsection shall not be held liable for civil damages attributable to the disclosure of such records or be subject to any disciplinary action based on such disclosure. History. — s. 12, ch. 85-175; s. 68, ch. 86-160; s. 8, ch. 86-287; s. 71, ch. 95-211; s. 1151, ch. 97-102; s. 1, ch. 2001-155; s. 79, ch. 2004-265; s. 42, ch. 2008-111; s. 28, ch. 2019-58. Note. — Former s. 768.495. 766.106 Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review. (1) DEFINITIONS. — As used in this section, the term: (a) “Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services. (b) “Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant. (c) “Insurer” includes the Joint Underwriting Association. (2) PRESUIT NOTICE. — (a) After completion of presuit investigation pursuant to s. 766.203(2) and before filing a complaint for medical negligence, a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence by at least one of the following verifiable means: 1. United States Postal Service certified mail, return receipt requested; 2. United States Postal Service mail with a tracking number; 3. An interstate commercial mail carrier or delivery service; or 4. Any person authorized by law to serve process. (b)1. Proof of service made pursuant to this subsection and delivered to an address on file with the Department of Health, the Secretary of State, or the Agency for Health Care Administration creates a rebuttable presumption that service was received by the prospective defendant. 2. If service is challenged during subsequent litigation, the court must conduct an evidentiary hearing to determine whether the prospective defendant or a person legally related to the prospective defendant was provided notice pursuant to this subsection and, if so, the date of such service. If service is challenged under this subparagraph, it must be challenged in the first response to the complaint, and if: a. The court determines that service was properly made at the prospective defendant’s address as listed on the state licensing agency website or an address on file with the Secretary of State; and b. The prospective defendant proves by the greater weight of the evidence that neither the prospective defendant nor a person legally related to the prospective defendant at the time of service knew or should have known of the service, the court must stay the case for a presuit investigation period pursuant to this section, and the statute of limitations and statute of repose must be tolled from the time service was properly made at the prospective defendant’s address as listed on the state licensing agency website or an address on file with the Secretary of State. The tolling shall end at the conclusion of the presuit investigation period provided for in this subsection, and the stay of litigation shall automatically end at the conclusion of the presuit investigation period. (c) Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period before the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065. (d) Following the initiation of a suit alleging medical negligence with a court of competent jurisdiction, and service of the complaint upon a prospective defendant, the claimant shall provide a copy of the complaint to the Department of Health and, if the complaint involves a facility licensed under chapter 395, the Agency for Health Care Administration. The requirement of providing the complaint to the Department of Health or the Agency for Health Care Administration does not impair the claimant’s legal rights or ability to seek relief for his or her claim. The Department of Health or the Agency for Health Care Administration shall review each incident that is the subject of the complaint and determine whether it involved conduct by a licensee which is potentially subject to disciplinary action, in which case, for a licensed health care practitioner, s. 456.073 applies and, for a licensed facility, part I of chapter 395 applies. (3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT. — (a) A suit may not be filed for a period of 90 days after notice is delivered to any prospective defendant. During the 90-day period, the prospective defendant or the prospective defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the prospective defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period. This procedure must include one or more of the following: 1. Internal review by a duly qualified claims adjuster; 2. Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster; 3. A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee; or 4. Any other similar procedure which fairly and promptly evaluates the pending claim. Each insurer or self-insurer shall investigate the claim in good faith, and both the claimant and prospective defendant shall cooperate with the insurer in good faith. If the insurer requires, a claimant must appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required. Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screening procedure if done without intentional fraud. (b) At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response: 1. Rejecting the claim; 2. Making a settlement offer; or 3. Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages. (c) The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section. (d) Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including: 1. The exact nature of the response under paragraph (b). 2. The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages. 3. The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section. 4. An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action. 5. An estimation of the costs and attorney’s fees of proceeding through trial. (4) SERVICE OF PRESUIT NOTICE AND TOLLING. — The notice of intent to initiate litigation must be served within the time limits set forth in s. 95.11. However, upon mailing of the notice of intent to initiate litigation, as provided in subparagraph (2)(a)1., subparagraph (2)(a)2., or subparagraph (2)(a)3., and during the 90-day period provided in subsection (3), the statute of limitations is tolled as to all prospective defendants. If the notice of intent to initiate litigation is served by a process server as provided in subparagraph (2)(a)4., the statute of limitations is tolled upon the process server’s first attempt to serve the prospective defendant and continues during the 90-day period as to all prospective defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit. As used in this section, the terms “prospective” and “potential” are interchangeable. (5) DISCOVERY AND ADMISSIBILITY. — A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll). (6) INFORMAL DISCOVERY. — (a) Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted. (b) Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows: 1. Unsworn statements. — Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses. 2. Documents or things. — Any party may request discovery of documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Medical records shall be produced as provided in s. 766.204. 3. Physical and mental examinations. — A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant. Such examination report is available to the parties and their attorneys upon payment of the reasonable cost of reproduction and may be used only for the purpose of presuit screening. Otherwise, such examination report is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 4. Written questions. — Any party may request answers to written questions, the number of which may not exceed 30, including subparts. A response must be made within 20 days after receipt of the questions. 5. Interviews of treating health care providers. — A prospective defendant or his or her legal representative may interview the claimant’s treating health care providers consistent with the authorization for release of protected health information. This subparagraph does not require a claimant’s treating health care provider to submit to a request for an interview. Notice of the intent to conduct an interview shall be provided to the claimant or the claimant’s legal representative, who shall be responsible for arranging a mutually convenient date, time, and location for the interview within 15 days after the request is made. For subsequent interviews, the prospective defendant or his or her representative shall notify the claimant and his or her legal representative at least 72 hours before the subsequent interview. If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative. 6. Unsworn statements of treating health care providers. — A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating health care providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subparagraph 1., a prospective defendant may take unsworn statements from a claimant’s treating physicians. Reasonable notice and opportunity to be heard must be given to the claimant or the claimant’s legal representative before taking unsworn statements. The claimant or claimant’s legal representative has the right to attend the taking of such unsworn statements. (c) Each request for and notice concerning informal presuit discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof. (d) Copies of any documents produced in response to the request of any party must be served upon all other parties. The party serving the documents or his or her attorney shall identify, in a notice accompanying the documents, the name and address of the parties to whom the documents were served, the date of service, the manner of service, and the identity of the document served. (7) SANCTIONS. — Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit. History. — s. 14, ch. 85-175; s. 9, ch. 86-287; s. 3, ch. 88-173; s. 48, ch. 88-277; s. 245, ch. 94-218; s. 1, ch. 94-258; s. 424, ch. 96-406; s. 1800, ch. 97-102; s. 164, ch. 98-166; s. 225, ch. 2000-160; s. 166, ch. 2000-318; s. 1, ch. 2000-341; s. 49, ch. 2003-416; s. 11, ch. 2011-233; s. 3, ch. 2013-108; s. 17, ch. 2022-190. Note. — Former s. 768.57. 766.1065 Authorization for release of protected health information. (1) Presuit notice of intent to initiate litigation for medical negligence under s. 766.106(2) must be accompanied by an authorization for release of protected health information in the form specified by this section, authorizing the disclosure of protected health information that is potentially relevant to the claim of personal injury or wrongful death. The presuit notice is void if this authorization does not accompany the presuit notice and other materials required by s. 766.106(2). (2) If the authorization required by this section is revoked, the presuit notice under s. 766.106(2) is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void. (3) The authorization required by this section shall be in the following form and shall be construed in accordance with the “Standards for Privacy of Individually Identifiable Health Information” in 45 C.F.R. parts 160 and 164: AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION A. I, (Name of patient or authorized representative) [hereinafter “Patient”], authorize that (Name of health care provider to whom the presuit notice is directed) and his/her/its insurer(s), self-insurer(s), and attorney(s), and the designated treating health care provider(s) listed below and his/her/its insurer(s), self-insurer(s), and attorney(s) may obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes: 1. Facilitating the investigation and evaluation of the medical negligence claim described in the accompanying presuit notice; 2. Defending against any litigation arising out of the medical negligence claim made on the basis of the accompanying presuit notice; or 3. Obtaining legal advice or representation arising out of the medical negligence claim described in the accompanying presuit notice. B. The health information obtained, used, or disclosed extends to, and includes, verbal health information as well as written health information and is described as follows: 1. The health information in the custody of the following health care providers who have examined, evaluated, or treated the Patient in connection with injuries complained of after the alleged act of negligence: (List the name and current address of all health care providers). This authorization extends to any additional health care providers that may in the future evaluate, examine, or treat the Patient for the injuries complained of. 2. The health information in the custody of the following health care providers who have examined, evaluated, or treated the Patient during a period commencing 2 years before the incident that is the basis of the accompanying presuit notice. (List the name and current address of such health care providers, if applicable.) C. This authorization does not apply to the following list of health care providers possessing health care information about the Patient because the Patient certifies that such health care information is not potentially relevant to the claim of personal injury or wrongful death that is the basis of the accompanying presuit notice. (List the name of each health care provider to whom this authorization does not apply and the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure. If none, specify “none.”) D. The persons or class of persons to whom the Patient authorizes such health information to be disclosed or by whom such health information is to be used: 1. Any health care provider providing care or treatment for the Patient. 2. Any liability insurer or self-insurer providing liability insurance coverage, self-insurance, or defense to any health care provider to whom presuit notice is given, or to any health care provider listed in subsections B.1.-2. above, regarding the care and treatment of the Patient. 3. Any consulting or testifying expert employed by or on behalf of (name of health care provider to whom presuit notice was given) and his/her/its insurer(s), self-insurer(s), or attorney(s) regarding the matter of the presuit notice accompanying this authorization. 4. Any attorney (including his/her staff) employed by or on behalf of (name of health care provider to whom presuit notice was given) or employed by or on behalf of any health care provider(s) listed in subsections B.1.-2. above, regarding the matter of the presuit notice accompanying this authorization or the care and treatment of the Patient. 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of the Patient. E. This authorization expressly allows the persons or class of persons listed in subsections D.2.-4. above to interview the health care providers listed in subsections B.1.-2. above, without the presence of the Patient or the Patient’s attorney. F. This authorization expires upon resolution of the claim or at the conclusion of any litigation instituted in connection with the matter of the presuit notice accompanying this authorization, whichever occurs first. G. The Patient understands that, without exception, the Patient has the right to revoke this authorization in writing. The Patient further understands that the consequence of any such revocation is that the presuit notice under s. 766.106(2), Florida Statutes, is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void. H. The Patient understands that signing this authorization is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits. I. The Patient understands that information used or disclosed under this authorization may be subject to additional disclosure by the recipient and may not be protected by federal HIPAA privacy regulations. Signature of Patient/Representative: Date: Name of Patient/Representative: Description of Representative’s Authority: History. — s. 12, ch. 2011-233; s. 83, ch. 2012-5; s. 4, ch. 2013-108. 766.108 Mandatory mediation and mandatory settlement conference in medical negligence actions. (1) Within 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person mandatory mediation in accordance with s. 44.102 if binding arbitration under s. 766.207 has not been agreed to by the parties. The Florida Rules of Civil Procedure shall apply to mediation held pursuant to this section. (2)(a) In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, the court shall require a settlement conference at least 3 weeks before the date set for trial. (b) Attorneys who will conduct the trial, parties, and persons with authority to settle shall attend the settlement conference held before the court unless excused by the court for good cause. History. — s. 19, ch. 85-175; s. 11, ch. 86-287; s. 50, ch. 2003-416. Note. — Former s. 768.58. 766.110 Liability of health care facilities. (1) All health care facilities, including hospitals and ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the competence of their medical staff and personnel through careful selection and review, and are liable for a failure to exercise due care in fulfilling these duties. These duties shall include, but not be limited to: (a) The adoption of written procedures for the selection of staff members and a periodic review of the medical care and treatment rendered to patients by each member of the medical staff; (b) The adoption of a comprehensive risk management program which fully complies with the substantive requirements of s. 395.0197 as appropriate to such hospital’s size, location, scope of services, physical configuration, and similar relevant factors; (c) The initiation and diligent administration of the medical review and risk management processes established in paragraphs (a) and (b) including the supervision of the medical staff and hospital personnel to the extent necessary to ensure that such medical review and risk management processes are being diligently carried out. Each such facility shall be liable for a failure to exercise due care in fulfilling one or more of these duties when such failure is a proximate cause of injury to a patient. (2) Every hospital licensed under chapter 395 may carry liability insurance or adequately insure itself in an amount of not less than $1.5 million per claim, $5 million annual aggregate to cover all medical injuries to patients resulting from negligent acts or omissions on the part of those members of its medical staff who are covered thereby in furtherance of the requirements of ss. 458.320 and 459.0085. Self-insurance coverage extended hereunder to a member of a hospital’s medical staff meets the financial responsibility requirements of ss. 458.320 and 459.0085 if the physician’s coverage limits are not less than the minimum limits established in ss. 458.320 and 459.0085 and the hospital is a verified trauma center that has extended self-insurance coverage continuously to members of its medical staff for activities both inside and outside of the hospital. Any insurer authorized to write casualty insurance may make available, but shall not be required to write, such coverage. The hospital may assess on an equitable and pro rata basis the following professional health care providers for a portion of the total hospital insurance cost for this coverage: physicians licensed under chapter 458, osteopathic physicians licensed under chapter 459, podiatric physicians licensed under chapter 461, dentists licensed under chapter 466, and nurses licensed under part I of chapter 464. The hospital may provide for a deductible amount to be applied against any individual health care provider found liable in a law suit in tort or for breach of contract. The legislative intent in providing for th