MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary A
By: Representative Ishee
AN ACT TO PROVIDE FOR THE SUBMISSION OF MEDICAL MALPRACTICE CLAIMS TO MEDICAL REVIEW PANELS; TO PROVIDE FOR FILING OF REQUESTS FOR REVIEW; TO PROVIDE NOTICE REQUIREMENTS; TO PROVIDE FOR THE SELECTION OF MEDICAL REVIEW PANEL MEMBERS AND CHAIRMEN; TO PROVIDE FOR THE QUALIFICATIONS OF THE MEMBERS; TO PROVIDE PROCEDURAL GUIDELINES FOR MEDICAL REVIEW PANELS; TO PROVIDE FOR COMPENSATION OF MEDICAL REVIEW PANEL MEMBERS; TO PROVIDE FOR THE SUBMISSION OF THE REPORT OF THE MEDICAL REVIEW PANEL; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) (a) All malpractice claims against health care providers covered by this act, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this section.
(b) (i) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this act, until ninety (90) days following notification, by certified mail, as provided in subsection (10) of this section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this act, or in the case of a health care provider against whom a claim has been filed under the provisions of this act, but who has not qualified under this act, until sixty (60) days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this act. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tort-feasors, including, but not limited to, health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review. Filing a request for review of a malpractice claim as required by this section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription.
(ii) The request for review of the claim under this section shall be deemed filed on the date of receipt of the complaint stamped and certified by the board or on the date of mailing of the complaint if mailed to the board by certified or registered mail.
(iii) The board shall dismiss a claim ninety (90) days after giving notice by certified mail to the claimant or the claimant's attorney if no action has been taken by the claimant or the claimant's attorney to secure the appointment of an attorney chairman for the medical review panel within two (2) years from the date the request for review of the claim was filed.
(c) It shall be the duty of the board within fifteen (15) days of the receipt of the claim to:
(i) Confirm to the claimant that the filing has been officially received and whether or not the named defendant or defendants have qualified under this act; and
(ii) Notify all named defendants, whether or not qualified under the provisions of this act, that a filing has been made against them and request made for the formation of a medical review panel; and forward a copy of the proposed complaint to each named defendant at his last and usual place of residence or his office.
(2) (a) (i) 1. No action against a health care provider covered by this act, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this section.
2. A certificate of enrollment issued by the board shall be admitted in evidence.
(ii) However, with respect to an act of malpractice which occurs after July 1, 2003, if an opinion is not rendered by the panel within twelve (12) months after the date of notification of the selection of the attorney chairman by the executive director to the selected attorney and all other parties pursuant to paragraph (a) of subsection (3) of this section, suit may be instituted against a health care provider covered by this act. However, either party may petition a court of competent jurisdiction for an order extending the twelve-month period provided in this subsection for good cause shown. After the twelve-month period provided for in this subsection or any court-ordered extension thereof, the medical review panel established to review the claimant's complaint shall be dissolved without the necessity of obtaining a court order of dissolution.
(iii) By agreement of both parties, the use of the medical review panel may be waived.
(b) (i) A health care provider, against whom a claim has been filed under the provisions of this act, may raise any exception or defenses available in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel.
(ii) If the court finds that the claim had prescribed or otherwise was perempted prior to being filed, the panel, if established, shall be dissolved.
(c) Ninety (90) days after the notification to all parties by certified mail by the attorney chairman of the board of the dissolution of the medical review panel or ninety (90) days after the expiration of any court-ordered extension as authorized by paragraph (a) of this subsection, the suspension of the running of prescription with respect to a qualified health care provider shall cease.
(3) The medical review panel shall consist of three (3) health care providers who hold unlimited licenses to practice their profession in Mississippi and one (1) attorney. The parties may agree on the attorney member of the medical review panel or if no agreement can be reached, then the attorney member of the medical review panel shall be selected in the following manner:
(a) (i) The Office of the Clerk of the Mississippi Supreme Court, upon receipt of notification from the board, shall draw five (5) names at random from the list of attorneys who reside or maintain an office in the county which would be proper venue for the action in a court of law. The names of judges, magistrates, district attorneys and assistant district attorneys shall be excluded if drawn and new names drawn in their place. After selection of the attorney names, the office of the Clerk of the Supreme Court shall notify the board of the names so selected. It shall be the duty of the board to notify the parties of the attorney names from which the parties may choose the attorney member of the panel within five (5) days. If no agreement can be reached within five (5) days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two (2) names alternately, with the claimant striking first and so advising the health care provider of the name of the attorney so stricken; thereafter, the health care provider and the claimant shall alternately strike until both sides have stricken two (2) names and the remaining name shall be the attorney member of the panel. If either the plaintiff or defendant fails to strike, the Clerk of the Mississippi Supreme Court shall strike for that party within five (5) additional days.
(ii) After the striking, the office of the board shall notify the attorney and all other parties of the name of the selected attorney.
(b) The attorney shall act as chairman of the panel and in an advisory capacity but shall have no vote. It is the duty of the chairman to expedite the selection of the other panel members, to convene the panel, and expedite the panel's review of the proposed complaint. The chairman shall establish a reasonable schedule for submission of evidence to the medical review panel but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities within ninety (90) days following selection of the panel.
(c) (i) The plaintiff shall notify the attorney chairman and the named defendants of his choice of a health care provider member of the medical review panel within thirty (30) days of the date of certification of his filing by the board.
(ii) The named defendant shall then have fifteen (15) days after notification by the plaintiff of the plaintiff's choice of his health care provider panelist to name the defendant's health care provider panelist.
(iii) If either the plaintiff or defendant fails to make a selection of health care provider panelist within the time provided, the attorney chairman shall notify by certified mail the failing party to make such selection within five (5) days of the receipt of the notice.
(iv) If no selection is made within the five-day period, then the chairman shall make the selection on behalf of the failing party. The two (2) health care provider panel members selected by the parties or on their behalf shall be notified by the chairman to select the third health care provider panel member within fifteen (15) days of their receipt of such notice.
(v) If the two (2) health care provider panel members fail to make such selection within the fifteen-day period allowed, the chairman shall then make the selection of the third panel member and thereby complete the panel.
(vi) The qualification and selection of physician members of the medical review panel shall be as follows:
1. All physicians who hold a license to practice medicine in the State of Mississippi and who are engaged in the active practice of medicine in this state, whether in the teaching profession or otherwise, shall be available for selection.
2. Each party to the action shall have the right to select one (1) physician and upon selection the physician shall be required to serve.
3. When there are multiple plaintiffs or defendants, there shall be only one (1) physician selected per side. The plaintiff, whether single or multiple, shall have the right to select one (1) physician, and the defendant, whether single or multiple, shall have the right to select one (1) physician.
4. A panelist so selected and the attorney member selected in accordance with this subsection shall serve unless for good cause shown may be excused. To show good cause for relief from serving, the panelist shall present an affidavit to a judge of a court of competent jurisdiction and proper venue which shall set out the facts showing that service would constitute an unreasonable burden or undue hardship. A health care provider panelist may also be excused from serving by the attorney chairman if during the previous twelve-month period he has been appointed to four (4) other medical review panels. In either such event, a replacement panelist shall be selected within fifteen (15) days in the same manner as the excused panelist.
5. If there is only one (1) party defendant which is not a hospital, community blood center, tissue bank, or ambulance service, all panelists except the attorney shall be from the same class and specialty of practice of health care provider as the defendant. If there is only one (1) party defendant which is a hospital, community blood center, tissue bank or ambulance service, all panelists except the attorney shall be physicians. If there are claims against multiple defendants, one or more of whom are health care providers other than a hospital, community blood center, tissue bank or ambulance service, the panelists selected in accordance with this subsection may also be selected from health care providers who are from the same class and specialty of practice of health care providers as are any of the defendants other than a hospital, community blood center, tissue bank or ambulance service.
(d) When the medical review panel is formed, the chairman shall within five (5) days notify the board and the parties by registered or certified mail of the names and addresses of the panel members and the date on which the last member was selected.
(e) Before entering upon their duties, each voting panelist shall subscribe before a notary public the following oath:
"I, (name), do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with law and the evidence."
The attorney panel member shall subscribe to the same oath except that in lieu of the last sentence thereof the attorney's oath shall state:
"I acknowledge that I represent neither side and that it is my lawful duty to advice the panel members concerning matters of law and procedure and to serve as chairman."
The original of each oath shall be attached to the opinion rendered by the panel.
(f) The party aggrieved by the alleged failure or refusal of another to perform according to the provisions of this section may petition any district court of proper venue over the parties for an order directing that the parties comply with the medical review panel provisions of this act.
(g) A panelist or a representative or attorney for any interested party shall not discuss with other members of a medical review panel on which he serves a claim which is to be reviewed by the panel until all evidence to be considered by the panel has been submitted. A panelist or a representative or attorney for any interested party shall not discuss the pending claim with the claimant or his attorney asserting the claim or with a health care provider or his attorney against whom a claim has been asserted under this section. A panelist or the attorney chairman shall disclose in writing to the parties prior to the hearing any employment relationship or financial relationship with the claimant, the health care provider against whom a claim is asserted, or the attorneys representing the claimant or health care provider, or any other relationship that might give rise to a conflict of interest for the panelists.
(4) (a) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only.
(b) The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel.
(c) Depositions of the parties and witnesses may be taken prior to the convening of the panel.
(d) Upon request of any party, or upon request of any two (2) panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection and/or copying.
(e) The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in subsection (7).
(f) A copy of the evidence shall be sent to each member of the panel.
(5) Either party, after submission of all evidence and upon ten (10) days notice to the other side, shall have the right to convene the panel at a time and place agreeable to the members of the panel. Either party may question the panel concerning any matters relevant to issues to be decided by the panel before the issuance of their report. The chairman of the panel shall preside at all meetings. Meetings shall be informal.
(6) The panel shall have the right and duty to request and procure all necessary information. The panel may consult with medical authorities, provided the names of such authorities are submitted to the parties with a synopsis of their opinions and provided further that the parties may then obtain their testimony by deposition. The panel may examine reports of such other health care providers necessary to fully inform itself regarding the issue to be decided. Both parties shall have full access to any material submitted to the panel.
(7) The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty (30) days but in all events within one hundred eighty (180) days after the selection of the last panel member, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
(a) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(b) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(c) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(d) Where paragraph (b) above is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (i) any disability and the extent and duration of the disability, and (ii) any permanent impairment and the percentage of the impairment.
(8) Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this act.
(9) (a) (i) Each physician member of the medical review panel shall be paid a per diem, as provided in Section 25-3-69, for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings and conclusions made in the course and scope of duties as a member of the medical review panel, and in addition thereto, as reasonable travel expenses as provided in Section 25-3-41.
(ii) The attorney chairman of the medical review panel shall be paid a per diem, as provided in Section 25-3-69, for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings and conclusions made in the course and scope of duties as a member of the medical review panel, and in addition thereto, reasonable travel expenses as provided in Section 25-3-41. Additionally, the attorney chairman shall be reimbursed for all reasonable out-of-pocket expenses incurred in performing his duties for each medical review panel. The attorney chairman shall submit the amount due him for all work performed as a member of the panel by affidavit, which shall attest that he has performed in the capacity of chairman of the medical review panel and that he was personally present at all the panel's meetings or deliberations.
(b) (i) The costs of the medical review panel shall be paid by the health care provider if the opinion of the medical review panel is in favor of said defendant health care provider.
(ii) The claimant shall pay the costs of the medical review panel if the opinion of the medical review panel is in favor of said claimant. However, if the claimant is unable to pay, the claimant shall swear under oath to the attorney chairman of the medical review panel that said claimant cannot afford the costs of the medical review panel as they accrue, then the costs of the medical review panel shall be paid by the health care provider, with the proviso that if the claimant subsequently receives a settlement or receives a judgment, the advance payment of the medical review panel costs will be offset.
(c) If the medical review panel decides that there is a material issue of fact bearing on liability for consideration by the court, the claimant and the health care provider shall split the costs of the medical review panel. However, in those instances in which the claimant is unable to pay his share of the costs of the medical review panel, the claimant shall swear under oath by the attorney chairman of the medical review panel that said claimant cannot pay his share of the costs of the medical review panel as they accrue. The claimant's share of the costs of the medical review panel shall then be paid by the health care provider with the proviso that if the claimant subsequently receives a settlement or receives a judgment, the advance payment of the claimant's share of the costs of the medical review panel will be offset.
(10) The chairman shall submit a copy of the panel's report to the board and all parties and attorneys by registered or certified mail within five (5) days after the panel renders its opinion.
(11) In the event the medical review panel after a good faith effort has been unable to carry out its duties by the end of the one-hundred-eighty-day period, either party or the board, after exhausting all remedies available to them under this section, may petition the appropriate court of competent jurisdiction for an order to show cause why the panel should not be dissolved and the panelists relieved of their duties. The suspension of the running of prescription shall cease sixty (60) days after the receipt by the claimant or his attorney of the final order dissolving the medical review panel, which order shall be mailed to the claimant or his attorney by certified mail.
(12) Where the medical review panel issues its opinion after the one hundred eighty (180) days required by this section, the suspension of the running of prescription shall not cease until ninety (90) days following notification by certified mail to the claimant or his attorney of the issuance of the opinion as required by subsection (10) of this section.
(13) Legal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this act.
SECTION 2. This act shall take effect and be in force from and after July 1, 2004.