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 REQUIRE AFFIDAVITS IN MEDICAL MALPRACTICE ACTIONS; TO PROVIDE A LIMITATION ON THE AWARD OF NONECONOMIC DAMAGES; TO REQUIRE THE COMMISSIONER OF INSURANCE TO DETERMINE AND REPORT CERTAIN INFORMATION REGARDING PHYSICIANS AND THE AVAILABILITY OF MEDICAL MALPRACTICE INSURANCE; 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 or claims against institutions for the aged and infirm 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 (UMMC) or its departmental practice plans who is a geographical full-time faculty member and provides medical services for patients at UMMC or its affiliated practice sites, or who practices on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning. 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 and who provides medical services for patients for the State Veterans Affairs Board. 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 that has been approved by the Federal Food and Drug Administration, a physician, pharmacist, nurse practitioner, physician assistant or psychologist, such medical provider may not be sued unless the plaintiff pleads specific facts which, if proven, amount to negligence on the part of the medical provider. It is the intent of this section to indemnify innocent medical providers listed in this section who are not actively negligent from forum-driven lawsuits and that, as to any claim brought against such providers under this section, the insurer shall not count such claim against the medical provider 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) An agent or employee of a disclosed principal who directly participates in or authorizes the commission of a tort, shall be subject to liability for any tortious conduct committed within the course and scope of employment. The principal shall indemnify the agent or employee, for such acts committed as its agent or employee.
(j) 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. 2, 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 for said health care providers and others. 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. Before any action for medical malpractice may be brought, the claimant or his attorney bringing such action shall sign an affidavit 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 8. (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 or 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) Subject to the provisions of paragraphs (b), (c) and (d) 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 One Million Dollars ($1,000,000.00) for pain and suffering, loss of companionship, embarrassment and other items of general damages from each occurrence causing harm, 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, death 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. Subject to the provisions of paragraphs (b), (c) and (d) in any such action which is tried without a jury, the court shall not award the plaintiff more than One Million Dollars ($1,000,000.00) 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 9. The Commissioner of Insurance shall determine the number of physicians licensed by the State of Mississippi who are unable to obtain medical malpractice insurance, and the commissioner shall report such information to the Legislature in January 2003. The commissioner shall make recommendations to the Legislature in January 2003 concerning the establishment of an actuarially sound joint underwriting medical malpractice association 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, hospitals, nursing facilities or assisted living facilities. The funding for such association shall be determined by the Legislature.
SECTION 10. 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 11. 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 Attorney General, the licensing agency, or his or its agents and investigators in the discharge of their 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 12. (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;
(e) One (1) person appointed by the Mississippi Medical Association;
(f) One (1) person appointed by the Magnolia Bar;
(g) One (1) person appointed by the Mississippi Medical and Surgical Association;
(h) One (1) person appointed by the Mississippi Health Care Association; and
(i) One (1) person appointed by the Mississippi Nurses' 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 13. 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 14. Sections 12 and 13 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 12 and 13 of this act shall be liberally construed for the encouragement of the settlement of disputes and the prevention of litigation.
SECTION 15. 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 16. 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 17. (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 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 18. 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.