2009 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane
AN ACT TO PROVIDE THAT MALPRACTICE CLAIMS MAY BE REVIEWED BY THE MEDICAL MALPRACTICE COMMISSION; TO ESTABLISH THE MEDICAL MALPRACTICE COMMISSION; TO PROVIDE WHAT EVIDENCE MAY BE CONSIDERED BY THE COMMISSION; TO PROVIDE THE FORM OF THE DECISION; TO PROVIDE FOR COMMISSIONERS' IMMUNITY AND COMPENSATION; TO PROVIDE FOR PAYMENT OF ATTORNEY FEES UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 73-25-14, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO REPEAL SECTION 11-1-58, MISSISSIPPI CODE OF 1972, WHICH REQUIRES A CERTIFICATE OF CONSULTATION IN CERTAIN MEDICAL MALPRACTICE ACTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Medical Malpractice Commission. (1) (a) 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 USC 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.
(iv) "Participating attorney" means an attorney who has paid an annual membership fee as provided in subsection (5) of this section.
(b) Malpractice claims against health care providers, other than claims validly agreed for submission to a lawfully binding arbitration procedure, may be reviewed by the Medical Malpractice Commission as provided in this section.
(c) (i) The request for review must be in writing, delivered to the commission in person or by certified or registered United States mail.
(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, and the plaintiff shall be allowed to proceed in court upon the complaint filed.
(2) (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 Malpractice Commission.
(b) If the court finds for the party raising the exception or defense, that party shall be dismissed.
(3) (a) The Medical Malpractice Commission shall consist of seven (7) physicians who each hold an unlimited license to practice medicine in Mississippi appointed as follows: three (3) physicians shall be appointed by the Governor, two (2) shall be appointed by the Lieutenant Governor, and two (2) shall be appointed by the Speaker of the House of Representatives.
(b) The commission shall elect from its membership a chairman. The chairman shall preside at commission meetings and shall be responsible for the function of the commission. It is the duty of the chairman to convene the commission and expedite the commission's review of proposed complaints. The chairman shall establish, by order, a reasonable schedule for submission of evidence to the commission, 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.
(c) Physicians serving on the commission shall disclose any financial, employment, or personal or family ties to any party or attorney for a party.
(4) (a) It shall be the duty of the commission to review all cases of alleged medical malpractice filed with the commission by any participating attorney.
(b) The commission, after submission of evidence regarding the specific questions of medical malpractice and a hearing, shall make a determination as to the validity of a case, which shall be in one (1) of the following forms:
(i) A "valid case" requires the unanimous vote of all seven (7) members;
(ii) A "nonvalid case" requires the unanimous vote of all seven (7) members; or
(iii) Any vote by the commission that is less than unanimous shall be reported by the commission as "no decision."
(c) The commission's report shall be due not later than ninety (90) days following the receipt of the case.
(d) (i) Upon receipt of a case, the chair shall designate one (1) member as lead to review a case.
(ii) The chair will then convene the commission to receive the recommendation of the lead member; the commission will then vote upon the case.
(iii) The chair records the vote and forwards the case disposition as set forth in paragraph (b) to the filing attorney.
(5) (a) Participating attorneys shall pay an annual membership fee of One Hundred Dollars ($100.00).
(b) Only participating attorneys are permitted to file cases with the commission.
(c) Membership fees are due not later than December 31 in order to be a participating attorney in the subsequent calendar year.
(d) The filing fee due from a participating attorney who files a case with the commission is Three Hundred Dollars ($300.00) for one (1) question plus One Hundred Dollars ($100.00) for each additional question of malpractice filed in the same case.
(6) (a) The evidence to be considered by the Medical Malpractice Commission 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 Malpractice Commission or submitted by the parties.
(c) Depositions of the parties only may be taken, and may be taken prior to the request for review.
(d) Upon request of any party or commission member, the commission 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 commission or other experts; all other experts must treat the plaintiff's records as confidential.
(7) (a) After submission of all evidence and upon ten (10) days' notice to both parties, the commission shall hold a hearing and 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 the parties an opportunity to make oral presentation of the facts. The chairman of the commission 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; or
(ii) 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.
(8) After receiving all evidence from the parties, the commission 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, and shall render a written decision as provided in subsection (4) of this section. (9) The decision reached by the Medical Malpractice Commission 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.
(10) A commission member 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.
(11) (a) Commission members shall be paid for attendance at commission meetings 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 chairman of the commission also shall be paid an annual salary of Twenty-five Thousand Dollars ($25,000.00) for all work performed as chairman of the commission.
(c) The commission member designated to review a case shall receive One Hundred Dollars ($100.00) for each such review.
(12) (a) If the decision of the commission is a "nonvalid" case:
(i) If the plaintiff drops the case, the parties shall each bear their own expense; or
(ii) 1. If the defendant prevails in court, the plaintiff shall pay reasonable attorney fees and expenses of the defendant to be determined by the court; or
2. If the plaintiff wins, the plaintiff's recovery is limited by Section 11-1-60.
(b) If the decision of the commission is a "valid" case:
(i) The parties may settle the case with each party to bear its own expense and the plaintiff's recovery to be governed by Section 11-1-60; or
(ii) If the plaintiff prevails at trial, the defendant shall pay all reasonable attorney fees and expenses of the plaintiff to be determined by the court and the plaintiff's recovery shall not be limited by Section 11-1-60; or
(ii) If the defendant prevails at trial, the parties shall each bear their own expense;
(c) If the decision of the commission is a "no decision" case, or if the case is not filed with the commission:
(i) There is no limitation on the amount of a settlement should the parties settle the case; and
(ii) 1. If the plaintiff prevails at trial, the plaintiff's recovery is governed by Section 11-1-60 and the defendant shall pay reasonable attorney fees and expenses to be determined by the court; or
2. If the defendant prevails at trial, the plaintiff shall pay reasonable attorney fees and expenses to be determined by the court.
(13) In any case that has been submitted to the commission, upon trial thereof in a court of this state, the decision of the commission shall be read to the jury both before opening statements and before closing arguments.
(14) (a) Participating attorneys are not required to submit cases to the commission, and the attorney fee of a participating attorney for any medical malpractice case shall not exceed forty percent (40%) of any settlement amount or jury award.
(b) Nonparticipating attorneys do not have standing to file cases with the commission. The attorney fee of a nonparticipating attorney for any medical malpractice case shall not exceed twenty-five percent (25%) of any settlement amount or jury award, after reasonable expenses as determined by the court.
(15) Members and staff of the commission shall keep confidential all information, including names of parties, involved in a case. A person who violates this provision shall be fined Five Thousand Dollars ($5,000.00) per violation.
SECTION 2. Section 73-25-14, Mississippi Code of 1972, is amended as follows:
73-25-14. (1) Except as provided in Section 33-1-39, the license of every person licensed to practice medicine or osteopathy in the State of Mississippi shall be renewed annually.
On or before May 1 of each year, the State Board of Medical Licensure shall mail a notice of renewal of license to every physician or osteopath to whom a license was issued or renewed during the current licensing year. The notice shall provide instructions for obtaining and submitting applications for renewal. The State Board of Medical Licensure is authorized to make applications for renewal available via electronic means. The applicant shall obtain and complete the application and submit it to the board in the manner prescribed by the board in the notice before June 30 with the renewal fee of an amount established by the board, but not to exceed Three Hundred Dollars ($300.00), a portion of which fee shall be used to support a program to aid impaired physicians and osteopaths. The payment of the annual license renewal fee shall be optional with all physicians over the age of seventy (70) years. Upon receipt of the application and fee, the board shall verify the accuracy of the application and issue to applicant a certificate of renewal for the ensuing year, beginning July 1 and expiring June 30 of the succeeding calendar year. That renewal shall render the holder thereof a legal practitioner as stated on the renewal form.
(2) Any physician or osteopath practicing in Mississippi who allows his or her license to lapse by failing to renew the license as provided in subsection (1) may be reinstated by the board on satisfactory explanation for the failure to renew, by completion of a reinstatement form, and upon payment of the renewal fee for the current year, and shall be assessed a fine of Twenty-five Dollars ($25.00) plus an additional fine of Five Dollars ($5.00) for each month thereafter that the license renewal remains delinquent.
(3) Any physician or osteopath not practicing in Mississippi who allows his or her license to lapse by failing to renew the license as provided in subsection (1) may be reinstated by the board on satisfactory explanation for the failure to renew, by completion of a reinstatement form and upon payment of the arrearages for the previous five (5) years and the renewal fee for the current year.
(4) Any physician or osteopath who allows his or her license to lapse shall be notified by the board within thirty (30) days of that lapse.
(5) Any person practicing as a licensed physician or osteopath during the time his or her license has lapsed shall be considered an illegal practitioner and shall be subject to penalties provided for violation of the Medical Practice Act, if he or she had not submitted the required reinstatement form and fee within fifteen (15) days after notification by the board of the lapse.
(6) Any physician or osteopath practicing in the State of Mississippi whose license has lapsed and is deemed an illegal practitioner under subsection (5) of this section may petition the board for reinstatement of his or her license on a retroactive basis, if the physician or osteopath was unable to meet the June 30 deadline due to extraordinary or other legitimate reasons, and retroactive reinstatement of licensure shall be granted or may be denied by the board only for good cause. Failure to advise the board of change of address shall not be considered a basis of reinstatement.
(7) None of the fees or fines provided for in this section shall be applicable to the renewal of a special volunteer medical license authorized under Section 73-25-18.
(8) Fees collected under the provisions of this section shall be used by the board to defray expenses of administering the licensure provisions of the Medical Practice Act (Title 73, Chapter 25, Mississippi Code of 1972) and to support a program to aid impaired physicians and osteopaths in an amount determined by the board.
(9) In order for a physician or osteopath whose medical license has been expired for five (5) years or more to qualify for reinstatement of license, the physician or osteopath must have successfully been cleared for reinstatement through an investigation that shall consist of a determination as to good moral character and verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Sections 73-25-29 and 73-25-83. To assist the board in conducting its licensure investigation, all applicants shall undergo a fingerprint-based criminal history records check of the Mississippi central criminal database and the Federal Bureau of Investigation criminal history database. Each applicant shall submit a full set of the applicant's fingerprints in a form and manner prescribed by the board, which shall be forwarded to the Mississippi Department of Public Safety (department) and the Federal Bureau of Investigation Identification Division for this purpose.
Any and all state or national criminal history records information obtained by the board that is not already a matter of public record shall be deemed nonpublic and confidential information restricted to the exclusive use of the board, its members, officers, investigators, agents and attorneys in evaluating the applicant's eligibility or disqualification for licensure, and shall be exempt from the Mississippi Public Records Act of 1983. Except when introduced into evidence in a hearing before the board to determine licensure, no such information or records related thereto shall, except with the written consent of the applicant or by order of a court of competent jurisdiction, be released or otherwise disclosed by the board to any other person or agency.
The board shall provide to the department the fingerprints of the applicant, any additional information that may be required by the department, and a form signed by the applicant consenting to the check of the criminal records and to the use of the fingerprints and other identifying information required by the state or national repositories.
The board shall charge and collect from the applicant, in addition to all other applicable fees and costs, such amount as may be incurred by the board in requesting and obtaining state and national criminal history records information on the applicant.
(10) Each applicant shall pay to the board an additional annual fee of One Hundred Dollars ($100.00) to fund the Medical Malpractice Commission created in Section 1 of this act.
SECTION 3. Section 11-1-58, Mississippi Code of 1972, which requires a certificate of consultation to be secured in certain medical malpractice actions, is repealed.
SECTION 4. This act shall take effect and be in force from and after July 1, 2009.