1(1) 2Notwithstanding the provisions of s. 7456.073, 8the board, or the department when there is no board, shall adopt rules to designate which violations of the applicable professional practice act are appropriate for mediation. The board, or the department when there is no board, shall designate as mediation offenses those complaints where harm caused by the licensee:
58(a) 59Is economic in nature except any act or omission involving intentional misconduct;
71(b) 72Can be remedied by the licensee;
78(c) 79Is not a standard of care violation involving any type of injury to a patient; or
95(d) 96Does not result in an adverse incident.
103(2) 104For the purposes of this section, an “adverse incident” means an event that results in:
119(a) 120The death of a patient;
125(b) 126Brain or spinal damage to a patient;
133(c) 134The performance of a surgical procedure on the wrong patient;
144(d) 145The performance of a wrong-site surgical procedure;
152(e) 153The performance of a surgical procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition;
173(f) 174The surgical repair of damage to a patient resulting from a planned surgical procedure, which damage is not a recognized specific risk as disclosed to the patient and documented through the informed-consent process;
207(g) 208The performance of a procedure to remove unplanned foreign objects remaining from a surgical procedure; or
224(h) 225The performance of any other surgical procedure that breached the standard of care.
238(3) 239After the department determines a complaint is legally sufficient and the alleged violations are defined as mediation offenses, the department or any agent of the department may conduct informal mediation to resolve the complaint. If the complainant and the subject of the complaint agree to a resolution of a complaint within 14 days after contact by the mediator, the mediator shall notify the department of the terms of the resolution. The department or board shall take no further action unless the complainant and the subject each fail to record with the department an acknowledgment of satisfaction of the terms of mediation within 60 days of the mediator’s notification to the department. A successful mediation shall not constitute discipline. In the event the complainant and subject fail to reach settlement terms or to record the required acknowledgment, the department shall process the complaint according to the provisions of s. 387456.073388.
389(4) 390Conduct or statements made during mediation are inadmissible in any proceeding pursuant to s. 404456.073405. Further, any information relating to the mediation of a case shall be subject to the confidentiality provisions of s. 425456.073426.
427(5) 428No licensee shall go through the mediation process more than three times without approval of the department. The department may consider the subject and dates of the earlier complaints in rendering its decision. Such decision shall not be considered a final agency action for purposes of chapter 120.
476(6) 477Any board created on or after January 1, 1995, shall have 6 months to adopt rules designating which violations are appropriate for mediation, after which time the department shall have exclusive authority to adopt rules pursuant to this section. A board shall have continuing authority to amend its rules adopted pursuant to this section.
