What is a three (3) Strikes Out Rule in Healthcare

What is the Three (3) Strikes Out Rule in Healthcare for Doctors?

Chapter 458 and 459, Florida Statutes (the Medical Practice Act and Osteopathic Medical Practice Act, respectively) prohibits physicians who have had three or more incidents of medical malpractice from being licensed to practice medicine in Florida.

A strike is defined as a final judgment by a court or agency that has been supported by clear and convincing evidence. A strike occurs when and if there is:   1. A final order of an administrative agency following a hearing where the licensee was found to have committed medical malpractice;   2. A final judgment of a court of law entered against a licensee where the licensee was found to have committed medical malpractice in a civil court action; or   3. A decision of binding arbitration where the licensee was found to have committed medical malpractice.  

Medical malpractice is defined as the failure to practice medicine in accordance with the level of care, skill, and treatment as a similar provider under similar circumstances. “Repeated medical malpractice” is defined as three or more incidents of medical malpractice found to have been committed by a medical doctor. It includes any similar wrongful act, neglect or default committed in other states or countries which, if committed in Florida, would have been considered medical malpractice.

How to Avoid the Three Strikes Out Rule

Technicalities of the Three Strikes Out Rule in Healthcare for Doctors - The provision contained in Florida Statutes 456.50(2), further states that “in order to rely on an incident of medical malpractice to determine whether a license must be denied or revoked under this section, if the facts supporting the finding of the incident of medical malpractice were determined on a standard less stringent than clear and convincing evidence, the board shall review the record of the case and determine whether the finding would be supported under a standard of clear and convincing evidence.”1 “Clear and convincing evidence” has been defined in various court opinions as an intermediate standard of proof, more than “preponderance of the evidence” standard used in most civil cases, and less than the “beyond a reasonable doubt” standard used in criminal cases.  The clear and convincing evidence standard requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking confusion as to the facts. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

DOH Investigations Will Follow Closed Claims in Three Strikes Out  - Pursuant to Florida Statutes Section 456.049,  all practitioner of medicine are required to report to the Office of Insurance Regulations (OIR) any claim or action for damages that asserts personal injuries to have been caused by error, omission or negligence in the performance of a physician's services or based upon a claim professional services that were performed without consent. When these reports are made by professional liability carriers, they are then reported from the OIR to the Department of Health, which in most cases will initiate what is termed a “closed claim” investigation against the physician licensee. The Closed Claim begins the process where there may ultimately be a review by the Board of Medicine of the malpractice action at the clear and convincing evidence standard impact, if any, of the three strikes amendment on applicants that may have considered Florida as a place to practice medicine as some physicians may simply have not applied for a medical license.   “Three-Strikes Rule.” 

The Three Strikes Out Rule in healthcare is another reason for practitioners to not just rely on the legal defense team provided by the insurance companies, but rather to get healthcare legal counsel to be a part of that defense team. 

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Ben Mirza is not only an attorney but was formerly a CPA, with a masters of public health.  There are over 100,000 attorneys in Florida, less than 500 of whom were ever Certified Public Accountants, and even less have the trifecta combination of law/finance/strategic healthcare background.   The benefit of this combined and layered skillset works well for clients who want an advocate to approach the issues holistically.  

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