A course about the Three Strikes Law in Florida.

1. The Three
Strikes Law in
© FBOG-SIP 2015

2. CONTINUING EDUCATION
There was no commercial support for this education.
There are no off-labeled uses of medications discussed in this module.
There are no alternative therapeutic modalities discussed in this module.
© 2015 Florida Board of Governors Self-Insurance Program. All rights reserved.
Approved by the Florida Board of Medicine as satisfying
the 1 hour Medical Error Prevention licensure requirement.
Expiration date is - June 30, 2018.
To obtain contact hours for the education, you must complete
the entire module, including the questions and evaluation.
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3. OBJECTIVES
Cite the Constitutional and statutory provisions of the Florida Three Strikes Law.
Explain the three key concepts of the Florida Three Strikes Law.
Recognize the types of results from medical malpractice trials, arbitration, and agency actions that
may result in a strike.
Define the term “physician” as used in the Three Strikes Law.
Define and discuss the terms, “medical malpractice” and “standard of care”.
Identify and contrast a single incident of medical malpractice that may lead to a single strike and
multiple incidents of medical malpractice that may lead to more than one strike.
Discuss the “clear and convincing evidence” standard necessary for an agency board to determine
if the physician will receive a strike.
Relate the practical implications of the Three Strike Law based upon its history.
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4. Florida
Three Strikes
Amendment
Overview
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5. THREE STRIKES LANGUAGE APPROVED
The Constitutional Provision
No person who has been found to have
committed three or more incidents of
medical malpractice shall be licensed or
continue to be licensed by the State of
Florida to provide health care services as
a medical doctor.
Art X, Sec. 26, Fla. Constitution
Prohibition of Medical License After Repeated Medical Malpractice
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6. Key Concepts of the
Three Strikes Law
Found to have committed
Three or more “incidents”
Medical malpractice
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7. “Found to Have Committed”
Malpractice Defined
“Found to have committed”
malpractice as determined by:
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8. A Strike May Include Presuit
Voluntary Binding Arbitration
The Medical Malpractice Act provides an
alternative to litigation.
The parties can agree to submit their
dispute to a panel of arbitrators.
The defendant must admit liability in
exchange for limits on damage awards.
Physicians who agree to this arbitration
process are subject to a strike.
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9. Is a
Settlement
Before an
Adverse
Verdict a
Strike?
As a general rule, a settlement is not a
Strike.
Settlements in Florida are reported to the
Florida Office of Insurance Regulation.
The Florida Office of Insurance
Regulation database is public record and
available to the medical/osteopathic
licensing boards.
A licensure investigation could be
initiated that could result in the board’s
determination that the licensure
investigation produced clear and
convincing evidence of medical
negligence on the part of the physician.
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10. “Medical Malpractice” AND The
Long Arm of the Law
“Medical Malpractice”
Failure to practice medicine in Florida with that level of care, skill, and
treatment recognized in general law related to healthcare providers’ licensure
AND
Any similar wrongful act, neglect, or default in other states or countries, which,
if committed in Florida, would have been considered medical malpractice
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11. The Florida Legislature Passed a
Law to Help Define the Three
Strikes Amendment
“Medical doctor”
“Incident of medical malpractice”
“Level of care, skill, and treatment
recognized under general law related
to health care licensure”
Standard of proof
“Final administrative decision”
Provides specificity and some
clarification of the Constitutional terms:
The Florida
Legislature’s enabling
legislation implements
the constitutional
amendment: Fla. Stat.
sec. 456.50 (2)
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12. Who is a
Medical Doctor?
Licensed under Florida
Statutes Chapter 458 (MD)
Licensed under Florida
Statutes Chapter 459 (DO)
A physician:
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13. What is Medical Malpractice?
The Breach of the Prevailing
Professional Standard of Care
Bad outcomes alone do not constitute a
breach of the professional standard of
care, except for:
Retained foreign body cases – res ipsa loquitor
ACT or OMISSION
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14. “The Level Of
Care, Skill, And
Treatment
Recognized in
General Law
Related To
Health Care
Licensure”
This concept is also referred to as
the Prevailing Professional Standard
of Care (Standard of Care)
The Standard of Care is established
under sec. 766.102 of Florida Statutes
“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 healthcare providers.”
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15. Expert opinion is required to assess the standard of care of a
medical doctor during the care and treatment of the patient
Recently, the Legislature has mandated that standard of care
opinions relating to the care and treatment of a specialist must
be rendered only by experts of the same specialty
What is REQUIRED to
Establish the
Standard of Care
Was Met?
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16. The wrongful act or
occurrence from which
the medical malpractice
arises, regardless of the
number of claimants or
the findings of the court,
arbitrators, or Board.
What is an “Incident” of
Medical Malpractice?
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17. A single act, regardless of the
number of claimants is counted
as only one (1) “incident”
Multiple findings of medical
malpractice arising from
the same wrongful act or
series of wrongful acts
associated with the
treatment of the same
patient counts as only one
(1) incident.
A Single Wrongful Act
vs.
Multiple Wrongful Acts
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18. Comparison of Standards of Proof in Legal Cases
Preponderance of the Evidence – a low threshold of proof applicable to
findings of medical malpractice by juries in a lawsuit or by arbitrators in an
arbitration proceeding.
Proof Beyond a Reasonable Doubt – a very high threshold of proof required to
convict a defendant in a criminal case. Not used in medical malpractice cases.
Clear and Convincing Evidence – A higher threshold of proof than preponderance
of the evidence standard but lower than the beyond a reasonable doubt standard.
“More likely than not”
Witness testimony must be precise and lack confusion.
The evidence as a whole is sufficient so that a trier of fact (e.g., a judge,
jury, arbitration panel) would have a firm conviction, without hesitation,
regarding the truth of the allegations of medical negligence.
What is the Standard of Proof of Medical
Malpractice Required for a Strike?
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19. The appropriate Board determines if an incident is one of medical
malpractice rising to the level of a strike.
The Board must determine if the strike was due to medical
negligence and was proven to a higher standard than the
preponderance of evidence standard applied in a medical
malpractice lawsuit or medical malpractice arbitration.
Clear and convincing evidence is the standard that is applied by
the Board.
If the court, the arbitrators, or licensing Board used a lower
standard, then the appropriate Board must review the proceedings
to determine if the acts or omissions of the medical doctor
demonstrate medical negligence by the higher standard of clear
and convincing evidence.
What Standard of Proof of Medical Mal-
practice IS Required for a Strike?
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20. A strike is:
AND
Determined by the Board that the evidence during trial, an arbitration hearing, or a board
proceeding proved medical malpractice by clear and convincing evidence.
A single strike may consist of one act of negligence regardless of the number of
claimants or multiple acts of negligence involving a single claimant.
An incident of medical negligence involving a breach of the
prevailing professional standard of care
Determined by a result of a:
Lawsuit;
Arbitration proceeding; or
Board administrative process
Wrapping Up the Legal Aspects
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21. Very few strikes
During the first six years from the passing of the Three-Strikes Rule amendment
to the constitution and enabling legislation only three physicians were deemed
by the Board of Medicine to have a strike.*
Boards of Medicine and Osteopathic Medicine have their own
statutory authority outside of the Three-Strikes law to suspend or
revoke a physician’s license for medical malpractice, even if the
physician had only one incident of medical malpractice.
*Chaires, G, Three Strikes Rule: It has been almost six years: Is there any discernable impact of its passage, Risk Rx, Vol.7, No.4, 2010
The Three Strike
Law in Practice
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22. PROGRAM CREDITS
Narration:
Glenn Rickards, WUFT-FM
Gainesville, FL
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