A Senate bill that would protect medical providers from claims related to COVID-19 is winding its way through the Florida Legislature, having been approved on February 10, 2021 by the Senate Judiciary Committee.  SB 74 requires a heightened standard of particularity in any civil action against a healthcare provider based on a claim related to the coronavirus and requires that the plaintiff prove “by the greater weight of the evidence” that the provider was either grossly negligent or engaged in intentional misconduct:

(a)  By failing to substantially follow authoritative or applicable government-issued health standards or guidance relating to COVID-19;

(b)  In interpreting or applying the standards or guidance with respect to the provision of health care or related services, or lack thereof, or the allocation of scarce resources or assistance with daily living; or

(c)  In the provision of a novel or experimental COVID-19 treatment.

The bill further imposes a one-year statute of limitations and immunizes providers from claims if “supplies, materials, equipment, or personnel necessary to comply with the applicable government-issued health standards or guidance at issue were not readily available or were not available at a reasonable cost.”

The House version of the bill differs in some ways, including the use of the “clear and convincing evidence” standard and the requirement that the plaintiff submit an affidavit by a physician averring that the virus-related damages occurred as a result of the defendant provider’s acts or omissions.

The bills are supported by the Florida Medical Association and the Florida Health Care Association.

One of the many new laws coming out of the 2020 legislative session, Senate Bill 1392 will significantly limit Florida circuit court appellate jurisdiction. Beginning January 1, 2021, civil and criminal appeals from county court decisions will be heard by the district courts of appeal. This means that cases will essentially skip the circuit court level of review and will be sent directly to the higher-level district courts. Some types of cases that may be impacted by this legislation include: 

• County civil disputes involving between $15,000-$30,000 
• Traffic offenses 
• Misdemeanor criminal charges 

Some people believe this change will be for the better, as district courts might be better equipped to handle the caseloads more efficiently and consistently.   According to the Senate Appropriations Committee, this change will help resolve the problem of having conflicting circuit opinions within the same circuit and the same district. Further, it may cost less for an individual to pursue an appeal, as the district courts may only charge $100 for a filing fee, whereas circuit courts may charge up to $280.    Circuit courts will still be able to review final administrative orders. 

The lawyers at Turner O’Connor Kozlowski, P.L. are equipped to handle appeals at all levels of Florida state and federal courts. Please call us at (352) 372-4263 if you are considering filing an appeal in your case.

November 20, 2020

Informed consent has long been the cornerstone of professional ethics, and something that we as consumers of legal, medical, and other services generally demand. The desire for more consent within the healthcare context is not surprising in light of several recent scandals: Larry Nassar’s abuse of Olympic-athlete patients, doctors secretly inseminating IVF patients with their own semen, and medical students performing pelvic examinations on unconscious women for educational purposes. In an effort to prevent such unwanted bodily intrusion, the Florida Legislature recently passed Senate Bill 698 (now Fla. Stat. s. 456.51), which seems to require all medical practitioners to obtain written consent before any pelvic examination. While the Florida legislature clearly had good intentions, the bill itself took on a broader scope than was originally intended, leaving OB/GYN doctors, pediatricians, and other medical specialists in the dark about what the law actually means. Moreover, medical professionals feared that the bill will unduly interfere with patient—doctor relationships and “hold women’s health care to a different standard than other care.”  Thankfully, the Board of Medicine’s recent clarifying declaratory statements about the bill may have quelled some of these uncertainties and fears.

The contents of SB 698 originated in a previously proposed bill, SB 1470. Under this bill, a health care provider would not be able to perform a pelvic examination on an anesthetized or unconscious patient, unless he or she obtained written consent from the patient or the patient’s representative. The term “pelvic examination” in this context was defined as a medical examination requiring contact with a patient’s sexual organs. According to Jeff Scott, General Counsel for the Florida Medical Association, the language of the bill clearly indicated that its original purpose was to prevent non-consensual pelvic examinations while female patients were under anesthesia.  Even after the concept for the new statute was moved into SB 698, the Senate Criminal Justice Committee noted that medical students around the country have been known to perform pelvic examinations on unconscious women for educational purposes.  However, during the last week of the legislative session, the Florida House of Representatives suddenly amended the bill without consulting with the FMA or other medical organizations.

The finalized bill redefined a “pelvic examination” as:

the series of tasks that comprise an examination of the vagina, cervix, uterus, fallopian tubes, ovaries, rectum, or external pelvic tissue or organs using any combination of modalities, which may include, but need not be limited to, the health care provider’s gloved hand or instrumentation.

This by itself considerably broadened the scope of the law, seemingly encompassing not only “traditional” female pelvic exams, but also male rectal examinations, hernia examinations, surgery on the pelvic area, and visual examinations of external tissue, which many doctors would not consider to be pelvic exams.  The bill also broadened the circumstances in which consent is required, stating that any health care practitioner may not perform any “pelvic examination” without written consent—regardless of whether the patient is conscious—absent a court order or medical necessity.

Without further guidance, Jeff Scott argued, the bill’s broad language would require doctors to obtain written consent even when doing so would be superfluous; i.e., if the patient’s sole purpose of visiting the doctor is to obtain the pelvic exam, when inserting a catheter, or before merely visually examining an infant for diaper rash.  Further, the bill does not specify what consequences a practitioner might face for failing to obtain a patient’s consent before conducting a pelvic examination. In response, the Florida Medical Association, along with the Florida Academy of Family Physicians, the Florida Chapter of the American Academy of Pediatrics,  the Florida Chapter of the American College of Physicians, and the Florida Society of Dermatologists and Dermatological Surgeons, sought declaratory statements from the Florida Board of Medicine clarifying that:

• doctors do not have to obtain written consent of male patients prior to genital or rectal examinations;
• doctors do not need to obtain written consent when performing surgical procedures, when touching the listed tissues or organs for diagnostic purposes (such as inserting a catheter, rectal wound care, rectal temperature readings, or cleansing area after diaper change), or touching such tissue or organs as part of a diagnostic procedure of other tissues or organs not involving those listed;
• one written consent form may cover additional examinations during the same course of treatment;
• written consent is not needed for mere visual examinations without physical contact with the listed bodily tissues or organs (ie when examining a rash, wound, or anomaly on an exterior tissue or organ)
• consent is not needed in cases where a pelvic exam is medically necessary and where the doctor enters a note in the patient’s medical record indicating the reasons for the exception and why the doctor could not obtain written consent.

On August 7, a month after the new law went into effect, the Board of Medicine finally considered the bill’s vagueness and passed several motions affirming portions of the FMA’s petition. While the Board’s Counsel, Edward Telleceha cautioned that the Board had no authority to change the law, the Board ultimately agreed that based on the language of the bill and the legislature’s intent:

• the new legislation clearly only referred to female patients;
• consent is not need when performing pelvic examinations for non-diagnostic reasons; and
• consent is not needed where the examination is only visual, and there is no physical contact with any of the parts of the anatomy included in the definition of “pelvic examination.”

As for the remaining clarifications sought by the FMA’s petition (such as whether one consent form may be used to authorize additional pelvic examinations during the same course of treatment), the Board concluded it did not have the authority to answer those questions. These findings are to be finalized during the next board meeting in October.

Thankfully for many medical practitioners, the Board of Medicine was able to clarify some points of confusion about the new law. However, since the legislature is ultimately the only governing body that can change the law or make further clarifications, practitioners should be wary of whether they need to obtain written consent from their patients, even during routine checkups and visits. For the time being, practitioners should err on the side of caution and provide patients with new consent forms each and every time they conduct a “pelvic examination.”

Turner O’Connor Kozlowski, P.L., can help you navigate the consent maze. Call (352) 372-4263 for more information.

Under Florida law, it is a crime to expose sexual organs in public or be naked in a vulgar or indecent matter. While this offense is typically a first-degree misdemeanor, recently-enacted law, HB 675 makes a second or subsequent violation a third-degree felony. The bill also makes it easier for officers to arrest people under this statute, eliminating the need to obtain a warrant. Florida Statutes section 901.15 is now amended to read:

A law enforcement officer may arrest a person without a warrant when:

(9) There is probable cause to believe that the person has committed:

 (e) An exposure of sexual organs in violation of s. 800.03.

The House Criminal Justice Subcommittee noted that “[b]y increasing the likelihood of arrest and increasing the penalty for subsequent indecent exposures, the bill may prevent additional offenses and prevent an offender from fleeing, going into hiding, or becoming hostile when law enforcement returns to execute an arrest warrant.”

According to Carlton Fields’ 2020 Florida Legislative Post-Session Report, an officer cannot generally make an arrest for a misdemeanor offense unless (1) the officer has a warrant or (2) a warrant exception applies, or (3) the officer was present at the time of the offense. This means that prior to HB 675, officers had to obtain a warrant to arrest people for exposing sexual organs, or physically see the defendant expose themselves.  HB 675 now provides an exception to the warrant requirement, allowing officers to make an arrest without a warrant AND without witnessing the offending conduct.

Appellate review acts as an important safety measure to ensure that lower courts and prosecutors act properly and that criminal defendants receive a fair trial. It is an unfortunate reality that people are sometimes wrongfully convicted or face disproportionately harsh sentences, and they might face wrongful incarceration prior to having their case meaningfully reviewed. In some situations, the court may allow the defendant to post bail and remain free while they take up their case on appeal. However, Florida Statute section 903.133 requires that defendants convicted of certain serious offenses remain incarcerated pending appeal without the opportunity for bail.

House Bill 333 recently went into effect on October 1, 2020, adding new offenses to the list of convictions that preclude bail pending appeal. Anyone who is convicted of a crime requiring sexual offender registration or sexual predator registration will now have to remain incarcerated if their victim was a minor at the time of the offense. According to the House Criminal Justice Subcommittee, these new offenses would include:

• Sexual misconduct with a person having a developmental disability;
• Sexual misconduct with a mental health patient by an employee;
• Specified violations of kidnapping or falsely imprisoning a minor;
• Luring or enticing a child, by a person with a prior sexual conviction;
• Human trafficking for commercial sexual activity;
• Sexual battery;
• Unlawful sexual activity with a minor;
• Lewd or lascivious battery, molestation, conduct, or exhibition;
• Video voyeurism involving a minor victim;
• Lewd or lascivious offense on an elderly or disabled person;
• Sexual performance by a child;
• Providing obscene materials to a minor;
• Computer pornography involving a minor;
• Soliciting a minor over the Internet;
• Traveling to meet a minor;
• Lewd or lascivious exhibition over the Internet;
• Transmitting child pornography by electronic device or equipment;
• Transmitting material harmful to a minor by electronic device;
• Selling or buying a minor to engage in sexually explicit conduct;
• Racketeering involving a sexual offense;
• Sexual misconduct with a forensic client; and
• Sexual misconduct by an employee with a juvenile offender.

While there has been little commentary on this bill since it was passed, it has the obvious effect of keeping people incarcerated while waiting for a decision on appeal, which could take months or even years to complete. The House Criminal Justice Subcommittee noted, however, that this bill is not expected to increase prison populations or have a fiscal impact on the state government, local governments, or the private sector.