MISSISSIPPI LEGISLATURE
2002 3rd Extraordinary Session
To: Select Committee on Civil Justice Reform
By: Representative Watson, Blackmon, Eads, Flaggs, Jennings, Masterson, Moak, Pierce, Robinson (63rd), Simpson, Smith (39th), Stevens, Warren
AN ACT TO AMEND SECTIONS 11-11-3, MISSISSIPPI CODE OF 1972, TO REVISE VENUE IN MEDICAL MALPRACTICE ACTIONS; TO AMEND SECTION 11-46-1, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT CERTAIN MEDICAL PRACTITIONERS ARE EMPLOYEES UNDER THE TORT CLAIMS ACT; TO CREATE SECTION 11-1-62, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PHYSICIANS AND PHARMACISTS SHALL BE INDEMNIFIED FOR PRESCRIBING FDA APPROVED DRUGS; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 15-1-36, MISSISSIPPI CODE OF 1972, TO REDUCE THE PERIOD FOR COMMENCING A MALPRACTICE ACTION AGAINST A NURSING FACILITY; TO PROVIDE A NINETY-DAY NOTICE FOR MEDICAL MALPRACTICE ACTIONS; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MEDICAL PRACTITIONERS COVERED UNDER THE TORT CLAIMS ACT ARE ONLY LIABLE FOR THE PERCENTAGE OF THEIR FAULT IN CIVIL ACTIONS; TO PROVIDE THAT PAYMENTS FROM COLLATERAL SOURCES SHALL BE REDUCED FROM AWARDS IN CIVIL ACTIONS; TO REQUIRE AFFIDAVITS IN MEDICAL MALPRACTICE ACTIONS; TO PROVIDE FOR PERIODIC PAYMENTS FOR AWARDS OF $50,000.00 OR MORE; TO PROVIDE A LIMITATION ON THE AWARD OF NONECONOMIC DAMAGES; TO CREATE A MEDICAL MALPRACTICE RISK POOL TO PROVIDE NECESSARY MEDICAL MALPRACTICE FOR CERTAIN HEALTH CARE PROVIDERS; TO AMEND SECTION 43-13-407, MISSISSIPPI CODE OF 1972, TO PROVIDE INITIAL FUNDING FOR THE MEDICAL MALPRACTICE RISK POOL; TO AMEND SECTION 43-11-1, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERM MEDICAL RECORDS; TO CREATE SECTION 43-11-16, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MEDICAL RECORDS SHALL REMAIN THE PROPERTY OF THE INSTITUTIONS FOR THE AGED AND INFIRM, SUBJECT TO REASONABLE ACCESS TO THE INFORMATION CONTAINED THEREIN UPON GOOD CAUSE SHOWN BY THE RESIDENT, HIS PERSONAL REPRESENTATIVES OR HEIRS; TO CREATE THE MEDICAL MALPRACTICE MEDIATION BOARD AND PROVIDE FOR ITS MEMBERSHIP; TO PROVIDE FOR MEDIATION FOR MEDICAL MALPRACTICE AND NURSING FACILITY DISPUTES; TO PROVIDE FOR THE APPOINTMENT AND CERTIFICATION OF MEDIATORS; TO PROVIDE THAT MEDIATION SHALL BE NONBINDING UNLESS THE PARTIES AGREE TO MAKE IT BINDING; TO REQUIRE THE COMMISSIONER OF INSURANCE TO ANNUALLY COMPILE AND PROVIDE TO THE LEGISLATURE A REPORT REGARDING MEDICAL MALPRACTICE CLAIMS; TO PROVIDE INCENTIVE FOR MEDICAL SCHOOL GRADUATES TO PRACTICE IN THE STATE; TO PROVIDE IMMUNITY FOR MEDICAL PERSONNEL PROVIDING VOLUNTEER SERVICE TO SCHOOL PROGRAMS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-11-3, Mississippi Code of 1972, is amended as follows:
11-11-3. (1) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue, except where otherwise provided, and except actions of trespass on land, ejectment and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof is situated. If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.
(2) Civil actions for claims of medical malpractice shall be commenced in the county where the cause of action occurred.
SECTION 2. Section 11-46-1, Mississippi Code of 1972, is amended as follows:
11-46-1. As used in this chapter the following terms shall have the meanings herein ascribed unless the context otherwise requires:
(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.
(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.
(c) "Board" means the Mississippi Tort Claims Board.
(d) "Department" means the Department of Finance and Administration.
(e) "Director" means the executive director of the department who is also the executive director of the board.
(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; provided, however, that for purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under such contract. The term "employee" shall also include any physician, dentist or other medical practitioner under contract or affiliated with or employed by the University of Mississippi Medical Center, its departmental practice plans, or who practices on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning only for the purposes of acting within the course and scope of their contract, affiliation or employment. The term "employee" shall also include any physician, dentist or other medical practitioner under contract or affiliated with or employed by the State Veterans Affairs Board only for the purposes of acting within the course and scope of their contract, affiliation or employment. The term "employee" shall also include Mississippi Department of Human Services licensed foster parents for the limited purposes of coverage under the Tort Claims Act as provided in Section 11-46-8.
(g) "Governmental entity" means and includes the state and political subdivisions as herein defined.
(h) "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.
(i) "Political subdivision" means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including but not limited to any county, municipality, school district, community hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.
(j) "State" means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.
(k) "Law" means all species of law including but not limited to any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.
SECTION 3. The following shall be codified as Section 11-1-62, Mississippi Code of 1972:
11-1-62. In any civil action alleging damages caused by a prescription drug and absent any negligence on the part of the physician or pharmacist, a physician or pharmacist shall be indemnified by the manufacturer of the prescription drug for any damages if the federal Food and Drug Administration (FDA) has approved that drug for treatment of the condition, disease or illness for which the drug was prescribed. It is the intent of this section to indemnify innocent physicians and pharmacists who are not actively negligent from forum-driven lawsuits and that, as to any claim brought against a physician under this section, the physician's insurer shall not count such claim against the physician for the purposes of insurance underwriting or, in any way, increase premiums for or deny insurance coverage.
SECTION 4. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. In any action for damages caused by a product except for commercial damage to the product itself:
(a) Subject to the provisions of Section 11-1-62, the manufacturer, seller, distributor or prescriber of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, seller, distributor or prescriber:
(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.
(c) (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a)(i)2 of this section, the manufacturer, seller, distributor or prescriber shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, seller, distributor or prescriber, the manufacturer, seller, distributor or prescriber knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.
(ii) An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.
(d) For purposes of this section:
(i) "Seller" means any person or entity that sells products of any kind.
(ii) "Prescriber" means any person licensed by the State of Mississippi to prescribe medicine.
(e) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer, seller, distributor or prescriber shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.
(f) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, seller, distributor or prescriber shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.
(g) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) The manufacturer, seller, distributor or prescriber knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and
(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.
(h) (i) The manufacturer of a product who is found liable for a defective product pursuant to subsection (a) shall indemnify a product seller, distributor or prescriber for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller, distributor or prescriber exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller, distributor or prescriber altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller, distributor or prescriber had actual knowledge of the defective condition of the product at the time he supplied same; or the seller, distributor or prescriber made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(ii) Subparagraph (i) shall not apply unless the seller, distributor or prescriber has given prompt notice of the suit to the manufacturer within thirty (30) days of the filing of the complaint against the seller.
(i) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 5. Section 15-1-36, Mississippi Code of 1972, is amended as follows:
15-1-36. (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, nursing facility, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, nursing facility, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred:
(a) In the event a foreign object introduced during a surgical or medical procedure has been left in a patient's body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient's body.
(b) In the event the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.
(3) Except as otherwise provided in subsection (4) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.
(4) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.
(5) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.
(6) When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under Section 15-1-55, Mississippi Code of 1972.
(7) For the purposes of subsection (3) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday.
(8) For the purposes of subsection (4) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday or from and after such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.
(9) The limitation established by this section as to a licensed physician, osteopath, dentist, hospital or nurse shall apply only to actions the cause of which accrued on or after July 1, 1976.
(10) The limitation established by this section as to pharmacists shall apply only to actions the cause of which accrued on or after July 1, 1978.
(11) The limitation established by this section as to podiatrists shall apply only to actions the cause of which accrued on or after July 1, 1979.
(12) The limitation established by this section as to optometrists and chiropractors shall apply only to actions the cause of which accrued on or after July 1, 1983.
(13) The limitation established by this section as to actions commenced on behalf of minors shall apply only to actions the cause of which accrued on or after July 1, 1989.
(14) The limitation established by this section as to nursing facilities shall apply only to actions the cause of which accrued after the passage of House Bill No. ____, Third Extraordinary Session of 2002.
(15) No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least ninety (90) days' prior notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within ninety (90) days of the expiration of the applicable statute of limitations, the time for the beginning of the action shall be extended ninety (90) days from the service of the notice. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
SECTION 6. Section 85-5-7, Mississippi Code of 1972, is amended as follows:
85-5-7. (1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including but not limited to negligence, malpractice, strict liability, absolute liability or failure to warn. "Fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent.
(2) Except as may be otherwise provided in subsections (6) and (8) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages.
(3) Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tortfeasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
(4) Any defendant held jointly liable under this section shall have a right of contribution against fellow joint tortfeasors. A defendant shall be held responsible for contribution to other joint tortfeasors only for the percentage of fault assessed to such defendant.
(5) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(6) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
(7) In actions involving joint tortfeasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.
(8) Physicians, dentists and other medical practitioners covered under the provisions of Section 11-46-1 et seq. shall only be liable for the amount of damages which is the percentage of fault allocated to such physician, dentist and other medical practitioners.
(9) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
SECTION 7. After the jury makes an award in an action for personal injury against a health care provider based upon professional negligence, the defendant may present to the presiding judge evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury under the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage and any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services. If the defendant elects to present such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to these insurance benefits. The plaintiff may also introduce evidence of any leave time lost due to the personal injury. The presiding judge shall reduce the jury award by the amount of such benefits less any amount which the plaintiff has paid or contributed to secure such benefits.
"Health care provider" means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. "Health care provider" also means any hospital or nursing facility.
"Professional negligence" means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.
SECTION 8. Before any action for medical malpractice may be brought, the attorney bringing such action shall sign an affidavit as an officer of the court stating that he has had his case reviewed by a medical expert and the medical expert has determined that there is a reasonable basis for the commencement of the action.
SECTION 9. (1) In any action for injury or damages against a provider of health care services, the court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds Fifty Thousand Dollars ($50,000.00) in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages. As a condition to authorizing period payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to assure full payment of such damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of this security, or so much as remains, to the judgment debtor.
(2) (a) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Such payments shall only be subject to modification in the event of the death of the judgment creditor.
(b) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in paragraph (a), the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make such period payments, including court costs and attorney's fees.
(3) However, money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In such cases the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subsection.
(4) Following the occurrence or expiration of all obligations specified in the periodic payment judgment, any obligation of the judgment debtor to make further payments shall cease and any security given, pursuant to subsection (1) shall revert to the judgment debtor.
(5) As used in this section:
(a) "Future damages" includes damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.
(b) "Periodic payments" means the payment of money or delivery of other property to the judgment creditor at regular intervals.
(c) "Health care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. "Health care provider" includes the legal representatives of a health care provider. "Health care provider" also means any hospital or nursing facility.
(d) "Professional negligence" means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.
(6) It is the intent of the Legislature in enacting this section to authorize the entry of judgments in malpractice actions against health care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments. By authorizing periodic payment judgments, it is the further intent of the Legislature that the courts will utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended. It is also the intent of the Legislature that all elements of the periodic payment program be specified with certainty in the judgment ordering such payments and that the judgment not be subject to modification at some future time which might alter the specifications of the original judgment.
SECTION 10. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Noneconomic damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, injury to reputation, humiliation, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term "noneconomic damages" shall not include punitive damages.
(b) "Actual economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair of replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
(2) (a) In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services against a provider of health care, the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the judge determines by clear and convincing evidence that there is substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained. In any such action which is tried without a jury, the court shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the aforesaid findings are made specially by the court and stated separately in the judgment entered by the court. It is the intent of this section to limit all noneconomic damages to the above.
(b) The limitations on damages set forth in this section shall be adjusted for inflation annually. The adjustment shall be based on the cumulative annual adjustment for inflation for each year since the effective date of the damages limitations in this section. The adjustment made pursuant to this paragraph shall be rounded upward or downward to the nearest increment of Ten Dollars ($10.00).
(c) As used in this section, "inflation" means the annual percentage change in the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for the State of Mississippi, all items, all urban consumers or its successor index.
(d) The Secretary of State shall certify the adjusted limitation on damages within fourteen (14) days after the appropriate information is available.
SECTION 11. The Commissioner of Insurance shall establish a medical malpractice risk pool for the purpose of making necessary medical malpractice insurance available for physicians, registered nurses and all other personnel who are duly licensed to practice in a hospital and hospitals. Monies for the initial funding of the Medical Malpractice Risk Pool shall be drawn from the Health Care Expendable Fund established in Section 43-13-407. The Commissioner of Insurance shall promulgate rules and regulations necessary for the operation of the risk pool.
SECTION 12. Section 43-13-407, Mississippi Code of 1972, is amended as follows:
43-13-407. (1) In accordance with the purposes of this article, there is established in the State Treasury the Health Care Expendable Fund, into which shall be transferred from the Health Care Trust Fund the following sums:
(a) In fiscal year 2000, Fifty Million Dollars ($50,000,000.00);
(b) In fiscal year 2001, Fifty-five Million Dollars ($55,000,000.00);
(c) In fiscal year 2002, Sixty Million Five Hundred Thousand Dollars ($60,500,000.00);
(d) In fiscal year 2003, Sixty-six Million Five Hundred Fifty Thousand Dollars ($66,550,000.00);
(e) In fiscal year 2004 and each subsequent fiscal year, a sum equal to the average annual amount of the income from the investment of the funds in the Health Care Trust Fund since July 1, 1999.
(2) In any fiscal year in which interest and dividends from the investment of the funds in the Health Care Trust Fund are not sufficient to fund the full amount of the annual transfer into the Health Care Expendable Fund as required in subsection (1) of this section, the State Treasurer shall transfer from tobacco settlement installment payments an amount that is sufficient to fully fund the amount of the annual transfer.
(3) (a) On March 6, 2002, the State Treasurer shall transfer the sum of Eighty-seven Million Dollars ($87,000,000.00) from the Health Care Trust Fund into the Health Care Expendable Fund. In addition, at the time the State of Mississippi receives the 2002 calendar year tobacco settlement installment payment, the State Treasurer shall deposit the full amount of that installment payment into the Health Care Expendable Fund.
(b) If during any fiscal year after March 6, 2002, the general fund revenues received by the state exceed the general fund revenues received during the previous fiscal year by more than five percent (5%), the Legislature shall repay to the Health Care Trust Fund one-third (1/3) of the amount of the general fund revenues that exceed the five percent (5%) growth in general fund revenues. The repayment required by this paragraph shall continue in each fiscal year in which there is more than five percent (5%) growth in general fund revenues, until the full amount of the funds that were transferred and deposited into the Health Care Expendable Fund under the provisions of paragraph (a) of this subsection have been repaid to the Health Care Trust Fund.
(4) All income from the investment of the funds in the Health Care Expendable Fund shall be credited to the account of the Health Care Expendable Fund. Any funds in the Health Care Expendable Fund at the end of a fiscal year shall not lapse into the State General Fund.
(5) The funds in the Health Care Expendable Fund shall be available for expenditure under specific appropriation by the Legislature beginning in fiscal year 2000, and shall be expended exclusively for health care purposes, including, but not limited to, the initial funding for the Medical Malpractice Risk Pool established in House Bill ______, 2002 Third Extraordinary Session.
(6) Subsections (1), (2), (4) and (5) of this section shall stand repealed on July 1, 2004.
SECTION 13. Section 43-11-1, Mississippi Code of 1972, is amended as follows:
43-11-1. When used in this chapter, the following words shall have the following meaning:
(a) "Institutions for the aged or infirm" means a place either governmental or private which provides group living arrangements for four (4) or more persons who are unrelated to the operator and who are being provided food, shelter and personal care whether any such place be organized or operated for profit or not. The term "institution for aged or infirm" includes nursing homes, pediatric skilled nursing facilities, psychiatric residential treatment facilities, convalescent homes and homes for the aged, provided that these institutions fall within the scope of the definitions set forth above. The term "institution for the aged or infirm" does not include hospitals, clinics or mental institutions devoted primarily to providing medical service.
(b) "Person" means any individual, firm, partnership, corporation, company, association or joint stock association, or any licensee herein or the legal successor thereof.
(c) "Personal care" means assistance rendered by personnel of the home to aged or infirm residents in performing one or more of the activities of daily living, which includes, but is not limited to, the bathing, walking, excretory functions, feeding, personal grooming and dressing of such residents.
(d) "Psychiatric residential treatment facility" means any nonhospital establishment with permanent facilities which provides a 24-hour program of care by qualified therapists including, but not limited to, duly licensed mental health professionals, psychiatrists, psychologists, psychotherapists and licensed certified social workers, for emotionally disturbed children and adolescents referred to such facility by a court, local school district or by the Department of Human Services, who are not in an acute phase of illness requiring the services of a psychiatric hospital, and are in need of such restorative treatment services. For purposes of this paragraph, the term "emotionally disturbed" means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:
1. An inability to learn which cannot be explained by intellectual, sensory or health factors;
2. An inability to build or maintain satisfactory relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression; or
5. A tendency to develop physical symptoms or fears associated with personal or school problems. An establishment furnishing primarily domiciliary care is not within this definition.
(e) "Pediatric skilled nursing facility" means an institution or a distinct part of an institution that is primarily engaged in providing to inpatients skilled nursing care and related services for persons under twenty-one (21) years of age who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled or sick persons.
(f) "Licensing agency" means the State Department of Health.
(g) "Medical records" mean, without restriction, those medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, x-rays and other written or graphic data prepared, kept, made or maintained in institutions for the aged or infirm that pertain to residency in, or services rendered to residents of, an institution for the aged or infirm.
SECTION 14. The following shall be codified as Section 43-11-16, Mississippi Code of 1972:
43-11-16. Medical records are and shall remain the property of the various institutions for the aged and infirm, subject however to reasonable access to the information contained therein upon good cause shown by the resident, his personal representatives or heirs, his attending medical personnel and his duly authorized nominees, and upon payment of any reasonable charges for such service. Nothing in this section shall be construed to deny access to medical records by the licensing agency in the discharge of its official duties under this chapter. Except as otherwise provided by law, medical records shall not constitute public records and nothing in this section shall be deemed to impair any privilege of confidence conferred by law or the Mississippi Rules of Evidence on residents, their personal representatives or heirs by Section 13-1-21.
SECTION 15. (1) There is created the Medical Malpractice Mediation Board which shall be comprised of the following members:
(a) One (1) person appointed by the Governor;
(b) One (1) person appointed by the Mississippi Trial Lawyers Association;
(c) One (1) person appointed by the Mississippi Bar;
(d) One (1) person appointed by the Mississippi Hospital Association; and
(e) One (1) person appointed by the Mississippi Medical Association.
(2) All members of the board shall be entitled to per diem as provided in Section 25-3-69 and travel expenses as provided in Section 25-3-41 for the performance of their duties as members of the board.
(3) The board shall elect a chairman and other officers it deems necessary to carry out the purposes of this act.
SECTION 16. Before any medical malpractice suit or suit involving a nursing facility may be brought, the dispute must be submitted for mediation. The board shall appoint and certify mediators for such disputes. Mediators shall be members of the Mississippi Bar who have been engaged in the active practice of law for a minimum of five (5) years. The mediator shall make every effort to help parties resolve their dispute in order to avoid litigation. Mediation shall be informal and rules of Civil Procedure and Evidence shall be relaxed. Mediation under this act shall be nonbinding unless the parties agree in writing to make the mediation binding. Any matter which is submitted for mediation under this act which is not resolved may not be filed as civil action until ninety (90) days after the termination of mediation.
SECTION 17. Sections 15 and 16 of this act shall not be construed to take away from the courts their power over awards, nor to make invalid any award good at common law. Sections 15 and 16 of this act shall be liberally construed for the encouragement of the settlement of disputes and the prevention of litigation.
SECTION 18. The Commissioner of Insurance annually for a period of three (3) years shall compile and provide to the Legislature a report on the number of medical malpractice claims, the rate being charged for medical malpractice insurance premiums, the number of physicians leaving the state and any other issues that the commissioner determines impact the medical profession.
SECTION 19. If any graduate of the University of Mississippi Medical Center decides to retain residency and practice medicine in the state upon graduation from any accredited medical doctor program or nurse practitioner program, then for a period of two (2) years that physician or nurse practitioner shall be able to receive from designated state funds an amount not to exceed twenty percent (20%) of such physician's or nurse practitioner's medical malpractice premium should those funds be made available by the Legislature and if the physician's or nurse practitioner's practice includes a minimum of twenty percent (20%) Medicaid paid patients.
SECTION 20. (1) Any licensed physician or certified nurse practitioner who voluntarily provides needed medical or health services to any program at an accredited school in the state without the expectation of payment due to the inability of such person to pay for said services shall be immune from liability for any civil action arising out of the provision of such medical or health services provided in good faith on a charitable basis. This section shall not extend immunity to acts of willful or gross negligence. Except in cases of rendering emergency care wherein the provisions of Section 73-25-37, Mississippi Code of 1972, apply, immunity under this section shall be extended only if the physician or certified nurse practitioner and patient execute a written waiver in advance of the rendering of such medical services specifying that such services are provided without the expectation of payment and that the licensed physician or certified nurse practitioner shall be immune as provided herein.
(2) Any physician who voluntarily renders any medical service under a special volunteer medical license authorized under Section 73-25-18 without any payment or compensation or the expectation or promise of any payment or compensation shall be immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service unless the act or omission was the result of the physician's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written or oral agreement for the physician to provide a voluntary noncompensated medical service before the rendering of the service by the physician.
SECTION 21. This act shall take effect and be in force from and after its passage and shall apply only to causes of action accruing on or after that date.