2009 Regular Session
To: Judiciary A
By: Representative Mayhall
AN ACT TO PROVIDE THAT ALL MALPRACTICE CLAIMS SHALL BE REVIEWED BY A MEDICAL REVIEW PANEL; TO ALLOW PARTIES TO MUTUALLY AGREE TO OPT OUT OF THIS REQUIREMENT; TO ESTABLISH THE MEMBERSHIP REVIEW PANEL; TO PROVIDE WHAT EVIDENCE MAY BE CONSIDERED BY THE PANEL; TO PROVIDE THE FORM OF THE DECISION; TO PROVIDE FOR PANELIST IMMUNITY AND COMPENSATION; TO PROVIDE THAT THE LOSING PARTY SHALL PAY ATTORNEY FEES TO THE PREVAILING PARTY UNDER CERTAIN CIRCUMSTANCES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Medical review panel.
(1) Claims; statute of limitations.
(a) Definitions. For purposes of this section:
(i) "Board" means the Tort Claims Board established by Section 11-46-18, Mississippi Code of 1972.
(ii) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, institution for the aged or infirm, community blood center, tissue bank, dentist, registered or licensed practical nurse or certified nurse assistant, ambulance service, certified registered nurse anesthetist, nurse-midwife, licensed midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 USCS 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the Mississippi Code of 1972, or any partnership, limited liability partnership, limited liability company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.
(iii) "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.
(b) (i) All malpractice claims against health care providers, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel as provided in this section unless all parties specifically waive the use of the medical review panel.
(ii) An action against a health care provider or his insurer commenced in any court shall be presented to a medical review panel and an opinion rendered by the panel pursuant to this section, and the court's request for review shall constitute a stay pending the panel's decision.
(iii) The request for review of a malpractice claim under this section shall be made by the court on its own motion or on the motion of any party.
(c) (i) The request for review must be in writing, delivered to the board in person or by certified or registered United States mail, and include as an exhibit the complaint filed.
(ii) Each defendant shall file a written answer within thirty (30) days of service of the request. If the defendant fails to file an answer as required, the board shall notify the defendant of the obligation to file and penalty for failure to file; notice shall be by certified or registered United States mail. If the defendant has not filed within thirty (30) days of the receipt of the notice specified in this subparagraph (ii), the request for review shall be dismissed; the panel, if formed, shall be dissolved, and the plaintiff shall be allowed to proceed in court upon the complaint filed.
(2) Dismissal of review; dissolution of panel.
(a) During the pendency of proceedings under this section, a health care provider against whom a claim has been filed may raise any exception or defenses available pursuant to Mississippi law, whether a procedural, statute of limitations or other exception or defense, at any time without need for completion of the review process by the medical review panel.
(b) If the court finds for the party raising the exception or defense, that party shall be dismissed. If there are no defendants remaining, the panel, if established, shall be dissolved.
(3) Composition and selection of panel.
(a) The medical review panel shall consist of three (3) physicians who each hold an unlimited license to practice medicine in Mississippi and one (1) attorney who shall be the nonvoting chair of the panel. The parties may agree on the attorney member of the medical review panel within thirty (30) days after the filing of the answer; if no agreement can be reached, then the attorney member of the medical review panel shall be selected as follows:
(i) The board shall draw five (5) names at random from the list of attorneys maintained by the board who have medical malpractice experience. 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 board shall notify the parties of the attorney names from which the parties, within five (5) days, may choose the attorney member of the panel. 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 plaintiff striking first and so advising the defendant of the name of the attorney so stricken; thereafter, the defendant and the plaintiff 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 board shall strike for that party within five (5) additional days.
(ii) After the striking, the board shall notify the attorney and all parties of the name of the selected attorney. An attorney who has a conflict of interest shall decline to serve.
(b) The attorney shall act as chairman of the panel and shall have no vote. The chairman shall preside at panel meetings, advise the panel as to questions of law, and shall prepare the opinion of the panel as required in subsection (7) of this section. 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 attorney chairman shall establish, by order, 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 one hundred twenty (120) days following selection of the panel.
(c) The qualification and selection of physician members of the medical review panel shall be as follows:
(i) 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 and, unless excused for cause, required to serve upon selection.
(ii) Each party to the action shall have the right to select one (1) physician and upon selection the physician shall be required to serve.
(iii) 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. The two (2) physicians so chosen shall jointly select the third physician. If the two (2) physicians cannot agree on the selection of the third physician within thirty (30) days, then the third physician shall be selected by the Tort Claims Board.
(iv) If any defendant is a physician, the physicians selected must be of the same specialty as at least one (1) physician defendant.
(v) Parties and their attorneys are absolutely prohibited from contact with the physician whose name is submitted, either before or after submission. No physician may be informed of the method of any panel member's selection.
(vi) No physician may be selected to serve on more than four (4) medical review panels in a twelve-month period.
(vii) The physician selection process shall be completed within thirty (30) days of the selection of the attorney chairman.
(d) Attorneys and physicians selected shall disclose any financial, employment, or personal or family ties to any party or attorney for a party. Any conflict that cannot be resolved shall be decided by the court upon the motion of any party.
(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:
(i) Medical records;
(ii) Sworn statements;
(iii) Expert reports signed by experts;
(iv) Deposition transcripts;
(v) Any other evidence allowed by the medical review panel or submitted by the parties.
(c) Depositions of the parties only may be taken, and may be taken prior to the convening of the panel.
(d) Upon request of any party or panel member, the board shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection, copying or both.
(e) The plaintiff must sign a valid authorization allowing defendants to obtain the plaintiff's medical records. The defendant shall treat all medical records in a confidential manner and shall not disclose the contents of the records to anyone other than the panel or other experts; all other experts must treat the plaintiff's records as confidential.
(f) The board shall send a copy of the evidence to each member of the panel.
(5) Hearings. (a) After submission of all evidence and upon ten (10) days' notice to the other side, either party or the panel shall have the right to convene the panel at a time and place agreeable to the members of the panel; each party is entitled to request only one (1) hearing. The panel may hold as many hearings as it chooses. The purpose of a hearing is to ask questions as to additional evidence needed and to afford an opportunity to make oral presentation of the facts. The chairman of the panel shall preside at all hearings, which shall be informal.
(b) The following are locations where hearings may be held:
(i) At a courthouse or other available public building in the county where the act or omission is alleged to have occurred.
(ii) The attorney chairman shall decide the location in the event of any dispute.
(iii) Private offices in the county where the act or omission is alleged to have occurred may be used if there is no cost or if the parties pay for the cost.
(6) Panel deliberations and decision. After receiving all evidence from the parties, the panel shall convene to discuss the evidence presented not less than one (1) time, and, not later than sixty (60) days after receiving all evidence from the parties, shall render a written decision signed by the panelists, together with written reasons for their conclusions, as follows:
(a) There was a breach of the appropriate standard of care;
(b) There was not a breach of the appropriate standard of care; or
(c) Whether the defendant or defendants failed to comply with the appropriate standard of care cannot be determined.
(7) Form of decision. The decision reached by the medical review panel shall be in writing, shall state the facts upon which it is based, shall be of public record, and shall be admissible as evidence in the civil case filed.
(8) Panelist immunity. 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 section.
(9) Panelist compensation.
(a) (i) Each physician member of the medical review panel shall be paid a fee of Five Hundred Dollars ($500.00) for all work performed as a member of the panel, and in addition thereto, per diem as provided in Section 25-3-69, Mississippi Code of 1972, and travel expenses as would be calculated for a state employee pursuant to Section 25-3-41, Mississippi Code of 1972.
(ii) The attorney chairman of the medical review panel shall be paid at the rate of One Hundred Fifty Dollars ($150.00) per hour, not to exceed a total of Three Thousand Dollars ($3,000.00), for all work performed as a member of the panel, and in addition thereto, per diem as provided in Section 25-3-69, Mississippi Code of 1972, and travel expenses as would be calculated for a state employee pursuant to Section 25-3-41, Mississippi Code of 1972.
(b) The costs of the medical review panel shall be split between the parties. The panel members shall by affidavit request the payment due under this subsection (9) from the board, which in turn shall bill the parties for the proportionate share of each party.
(10) Delivery and effect of decision. 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. The panel's report shall be of public record.
(11) Allocation of attorney fees and expenses.
(a) If the decision of the panel finds for the defendant and the defendant prevails in court, the plaintiff shall pay reasonable attorney fees and expenses of the defendant to be determined by the court.
(b) If the decision of the panel finds for the plaintiff:
(i) The plaintiff may submit a written settlement offer for a sum certain to the defendant. If the defendant rejects the settlement offer, the plaintiff prevails in court, and the judgment is equal to or greater than the settlement offer, the defendant shall pay reasonable attorney fees and expenses of the plaintiff to be determined by the court.
(ii) The defendant also may submit a written settlement offer for a sum certain to the plaintiff. If the plaintiff rejects the settlement offer and the defendant prevails in the subsequent court action, or the plaintiff prevails but the judgment is less than the defendant's settlement offer, the plaintiff shall pay reasonable attorney fees and expenses of the defendant to be determined by the court.
SECTION 2. This act shall take effect and be in force from and after July 1, 2009.