MISSISSIPPI LEGISLATURE

2002 3rd Extraordinary Session

To: Select Senate Cmte on Civil Justice Syst

By: Senator(s) Turner, Smith

Senate Bill 2007

AN ACT TO CREATE THE PHYSICIAN DISCLOSURE ACT OF 2002; TO ENACT SECTION 73-25-101, MISSISSIPPI CODE OF 1972, TO REQUIRE THE MEDICAL LICENSURE BOARD TO ADOPT REGULATIONS TO REQUIRE REPORTING OF UNPROFESSIONAL CONDUCT ON THE PART OF PHYSICIANS; TO ENACT SECTION 73-25-103, MISSISSIPPI CODE OF 1972, TO REQUIRE THE BOARD TO MAINTAIN CONFIDENTIAL FILES; TO ENACT SECTION 73-25-105, MISSISSIPPI CODE OF 1972, TO CREATE PUBLIC PROFILES OF PHYSICIANS; TO ALLOW THE MEDICAL LICENSURE BOARD TO CHARGE A FEE FOR PROVIDING COPIES OF PROFILES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act may be referred to as the Physician Disclosure Act of 2002. It is enacted in the best interest of the public to make available information which may be helpful in the evaluation and selection of physicians licensed to practice medicine in the State of Mississippi, although the physician profiles required by this act are not intended to be the sole basis for an individual's selection of a physician.

SECTION 2. The following shall be codified as Section 73-25-101, Mississippi Code of 1972:

73-25-101. (1) The Medical Licensure Board shall adopt regulations requiring any person, including, but not limited to, corporations, health care facilities, health maintenance organizations, organizations and federal, state or local governmental agencies, or peer review boards to report to the board any conviction, determination or finding that a licensed physician has engaged in unprofessional conduct, or to report information which indicates that a licensed physician may not be able to practice medicine with reasonable skill and safety to patients as the result of any mental or physical condition. The regulations shall include the reporting requirements of subsection (2) of this section.

(2) The following reports in writing shall be filed with the board:

(a) Every insurer providing professional liability insurance to a physician licensed under the provisions of this chapter shall send a complete report to the board setting forth any formal notice of any claim, settlement of any claim or cause of actions, or final judgment rendered in any cause of action for damages for death or personal injury caused by such physician's negligence, error or omission in practice or the physician's rendering of unauthorized professional services. The report shall be sent within thirty (30) days after service of any complaint or notice, settlement, judgment or arbitration award on the parties. All such reports shall set forth a detailed factual summary of the claim in question. All reports of final judgments or settlements shall specify the class or category of risk for which the physician is insured identified by Insurance Services Organization (ISO) code and, in the case of joint and several liability, shall specify the portion of the total award paid by or on behalf of the physician.

(b) All hospital and licensed health care facilities, including, but not limited to, nursing homes and health maintenance organizations and the State Pharmacy Board, must report to the board within thirty (30) days, any action, disciplinary or otherwise, taken for any reason, which limits, suspends or revokes a physician's privilege to practice or requires supervision of a physician, either through formal action by the institution or facility or through any voluntary agreement with the physician.

(c) Within ten (10) days after a judgment by a court of this state that a physician licensed under the provisions of this chapter has been convicted of a crime or is civilly liable for any death or personal injury caused by the physician's negligence, error or omission in the practice of medicine or the rendering of unauthorized professional services, the clerk of the court which rendered the judgment shall report the judgment to the board.

(3) The board shall publicly report any change of privilege of which it is aware to the board of trustees or other appropriate body of all licensed hospitals, licensed health care facilities, health maintenance organizations and other parties as the board deems appropriate within thirty (30) days, provided, however that notwithstanding the provisions of this subsection, the board, in instances where the change of privilege is not related to quality of patient care, may elect not to disseminate the report of change in privilege. Such an election may be made in executive session and no decision not to disseminate shall be made except by majority vote of the members present at the meeting and only upon a finding of fact by the board after inquiry that the change of privilege was not related to quality of patient care.

(4) The contents of any report file shall be confidential and exempt from public disclosure, except that it may be reviewed:

(a) By the licensee involved or the licensee's counsel or authorized representative, who may submit any additional exculpatory or explanatory statements or other information, which statements or other information shall be included in the file; or

(b) By the chief administrative officer, a representative of the board, or investigator thereof, who has been assigned to review the activities of a licensed physician.

(5) Upon determination that a report is without merit, the board's records may be purged of information relating to the report.

(6) If any person refuses to furnish a required report, the board may petition a court of competent jurisdiction in any county in which the person resides or is found, and the court shall issue to that person an order to furnish the required report. Failure to obey the order shall be punishable by the court as a civil contempt may be punished.

(7) Every individual, medical association, medical society, hospital, health care facility, health maintenance organization, peer review board, medical service bureau, health insurance carrier or agent, professional standards review organization, and agency of the federal, state or local government shall be immune from civil liability, whether direct or derivative, for providing information in good faith to the board pursuant to this act or the regulations promulgated pursuant to this act.

(8) Nondisclosure agreements are prohibited insofar as they forbid parties from making reports regarding competency or unprofessional conduct to the board.

SECTION 3. The following shall be codified as Section 73-25-103, Mississippi Code of 1972:

73-25-103. The board shall receive and maintain a confidential file which will be available to the board to precipitate or aid in their investigations. The information shall also be available to licensed health care facilities, including health maintenance organizations, in connection with the granting of staff privileges and to the individual physicians themselves and shall be available for inclusion in physician profiles pursuant to Section 4 of this act. The file shall contain the following physician information:

(a) Cases of malpractice suits against a physician as reported to the board by insurers and self-insurers, including those pending as of January 1, 2003;

(b) Cases of malpractice suits that result in allegations being dropped, a dismissal, a settlement, or court judgment or arbitration award adverse to the physician;

(c) Reports by any hospital or state or local professional medical association or society of disciplinary action taken against any physician. This should also include any resignation of a physician if related to unprofessional conduct as defined in law or any withdrawal of an application for hospital privileges relating to unprofessional conduct;

(d) Reports by state and federal courts of physicians found guilty of a felony;

(e) Reports by the professional review organization and third-party health insurers of sanctions imposed on a physician;

(f) Annual reports by hospitals and health maintenance organizations of current appointments to their medical staffs; and

(g) Information supplied to the board by the Federation of State Medical Boards and the American Medical Association.

The file may contain such other data as the board by reasonable rule or regulation deems appropriate.

SECTION 4. The following shall be codified as Section 73-25-105, Mississippi Code of 1972:

73-25-105. (1) The board shall compile the information listed below to create individual profiles on licensed physicians, in a format created by the board, consistent with the provisions of this act and any regulations promulgated thereunder, that shall be available for dissemination to the public and which shall include a conspicuous statement that "THIS PROFILE CONTAINS CERTAIN INFORMATION WHICH MAY BE USED AS A STARTING POINT IN EVALUATING THE PHYSICIAN; THIS PROFILE SHOULD NOT, HOWEVER, BE YOUR SOLE BASIS FOR SELECTING A PHYSICIAN."

(2) (a) The following information is compiled by the board in accordance with state laws and board regulations and procedures and shall be included in physician profiles, subject to the limitations and requirements set forth below:

(i) Names of medical schools and dates of graduation;

(ii) Graduate medical education;

(iii) A description of any final board disciplinary actions within the most recent ten (10) years;

(iv) A description of any final disciplinary actions by licensing boards in other states within the most recent ten (10) years;

(v) A description of any criminal convictions for felonies within the most recent ten (10) years. For the purposes of this subsection, a person shall be deemed to be convicted of a crime if he pleaded guilty or if he was found or adjudged guilty by a court of competent jurisdiction, or has been convicted of a felony by the entry of a plea of nolo contendere;

(vi) A description of revocation or restriction of hospital privileges for reasons related to competence that have been taken by the hospital's governing body or any other official of the hospital after procedural due process has been afforded, or the resignation from or nonrenewal of medical staff membership or the restriction of privileges at a hospital. Only cases which have occurred within the most recent ten (10) years shall be disclosed by the board to the public; and

(vii) All medical malpractice court judgments and all medical malpractice arbitration awards in which a payment is awarded to a complaining party during the most recent ten (10) years, and all settlements of medical malpractice claims in which a payment is made to a complaining party within the most recent ten (10) years. Dispositions of paid claims shall be reported in a minimum of three (3) graduated categories indicating the level of significance of the award or settlement. Information concerning paid medical malpractice claims shall be put in context by comparing an individual physician's medical malpractice judgments, awards and settlements to the experience of other physicians licensed in Mississippi who perform procedures and treat patients with a similar degree of risk. All judgment, award and settlement information reported shall be limited to amounts actually paid by or on behalf of the physician.

(b) Comparisons of malpractice payment data shall be accompanied by (i) an explanation of the fact that physicians treating certain patients and performing certain procedures are more likely to be the subject of litigation than others and that the comparison given is for physicians who perform procedures and treat patients with a similar degree of risk; (ii) a statement that the report reflects data for the last ten (10) years and the recipient should take into account the number of years the physician has been in practice when considering the data; (iii) an explanation that an incident giving rise to a malpractice claim may have occurred years before any payment was made due to the time lawsuits take to move through the legal system; (iv) an explanation of the effect of treating high-risk patients on a physician's malpractice history; and (v) an explanation that malpractice cases may be settled for reasons other than liability and that settlements are sometimes made by the insurer without the physician's consent. Information concerning all settlements shall be accompanied by the following statement: "Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred." Nothing herein shall be construed to limit or prevent the board from providing further explanatory information regarding the significance of categories in which settlements are reported.

(c) Pending malpractice claims and actual amounts paid by or on behalf of a physician in connection with a malpractice judgment, award or settlement shall not be disclosed by the board to the public. Nothing herein shall be construed to prevent the board from investigating and disciplining a licensee on the basis of medical malpractice claims that are pending.

(3) The following information shall be reported to the board by the physician and shall be included in physician profiles, subject to the limitations and requirements set forth below:

(a) Specialty board certification;

(b) Number of years in practice;

(c) Names of the hospitals where the physician has privileges;

(d) Appointments to medical school faculties and indication as to whether a physician has a responsibility for graduate medical education within the most recent ten (10) years;

(e) Information regarding publications in peer-reviewed medical literature within the most recent ten (10) years;

(f) Information regarding professional or community service activities and awards;

(g) The location of the physician's primary practice setting; and

(h) The identification of any language translating services that may be available at the physician's primary practice location; a statement shall be included in the profile indicating that such services may be temporary and that the physician's office should first be contacted to confirm the present availability of language translation.

(4) (a) A physician may elect to have his profile omit information concerning academic appointments and teaching responsibilities, publication in peer-reviewed journals and professional and community service awards. In collecting information for such profiles and in disseminating the same, the board shall inform physicians that they may choose not to provide such information.

(b) The board shall provide individual physicians with a copy of their profiles prior to initial release to the public and each time a physician's profile is modified or amended based on information (i) not supplied to the board personally by the physician, or (ii) not generated by the board itself. Prior to initial release to the public and upon each modification or amendment requiring physician review as provided in this subsection, a physician shall be provided not less than twenty-one (21) calendar days to correct factual inaccuracies that appear in such profile. If a dispute arises between a physician and the board regarding the accuracy of factual information in the physician's profile, the physician shall notify the board in writing of such dispute. If a physician does not notify the board of a dispute during the twenty-one-day review period, the profile shall be released to the public and the physician will be deemed to have approved the profile and all information contained therein. If a physician notifies the board of a dispute in accordance with this subsection, the physician's profile shall be released to the public without the disputed information, but with a statement to the effect that information in the identified category is currently the subject of a dispute and is therefore not available at this time. Within ten (10) calendar days after the board's receipt of notice of a dispute, the physician and the board or its authorized representative shall in good faith enter into discussions, which may continue for up to thirty (30) days, to resolve the dispute. If the dispute is not resolved within thirty (30) days, the disputed information shall be included in the profile with a statement that such information is disputed by the physician.

(c) Each profile shall contain a statement specifying the date of its last modification, amendment or update. If a physician has reviewed and approved or been deemed to have approved the profile in accordance with this subsection, such physician shall be responsible for the accuracy of the information contained therein. If a profile is released to the public without physician review as required by this subsection, then notwithstanding any immunity from liability, the board or any state agency supplying physician information to the board shall be solely responsible for the accuracy of the information it generates or supplies and which is contained in physician profiles released to the public.

(d) In order to protect against the unauthorized use or disclosure of provider profiles by Department of Health employees with access to the data, the Department of Health shall apply its existing safeguards and procedures for protecting confidential information to physician profile information.

(e) For each profile provided to the public by the board, the board may charge no more than Fifty Cents (50) per page or Three Dollars ($3.00) per profile, whichever is greater.

SECTION 5. This act shall take effect and be in force from and after January 1, 2003.