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In November of 2004, voters in Florida passed three major
amendments to the Florida Constitution dealing with health care
issues, including limits on attorney contingency fees in medical
liability cases (Amendment 3), opening peer review records to
the public (Amendment 7), and the “Three Strikes” amendment
(Amendment 8) to revoke medical licenses of physicians for
repeated medical malpractice. The Florida Legislature passed
two bills to implement amendments 7 and 8. (Amendment 3 was
considered “self-executing,” and does not need implementing
legislation.) The Florida College of Emergency Physicians
supported the Florida Medical Association and the Florida
Hospital Association in trying to ensure that implementing
legislation for both amendments protects patient access to
quality care without compromising the intent of the amendments.
Senate Bill 938, which implements amendment 7 (peer review),
and Senate Bill 940, which implements amendment 8 (three
strikes), represent victories for physicians. Below are some
highlights of both bills: CS/SB 938 – Amendment 7 – Peer
Review
It keeps currents laws in tact which provide immunity from
liability in damages for any act or proceeding performed by a
physician participating in peer review activities as long as the
physician acts without intentional fraud.
These records cannot be introduced as evidence in a liability
case.
The bill clarifies that Amendment 7 is not retroactive and does
not apply to records created, incidents occurring and actions
pending prior to November 2, 2004.
The bill also clarifies that only those adverse incidents to
which a patient is granted access are those affecting the
patient or any other patient whose condition, treatment or
diagnosis is the same or substantively similar to the patient.
The bill also only applies to records created within four years
before the date of the request.
It keeps current law prohibiting any person who participated in
peer review from being required to testify in any civil action
regarding consideration or recommendations of the peer review
committee or its members. CS/SB 940 – Amendment 8 – “Three
Strikes”
The bill applies only to incidents occurring on or after
November 2, 2004
The facts supporting a claim of medical malpractice must be
based on “clear and convincing evidence.”
The bill defines “found to have committed” as meaning
malpractice that has been found in a final judgment of a court
of law, administrative agency decision or decision of binding
arbitration.
Medical malpractice found by courts of other states or nations
must have been made in locals with the same or greater standard
of care than Florida and must require proof of medical
malpractice by at least a “clear and convincing” standard.
The Board of Medicine and the Board of Osteopathic Medicine are
responsible for implementing the amendment and to determine by
“clear and convincing evidence” whether a medical doctor
committed medical malpractice. |
