MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Public Health and Welfare; Judiciary

By: Senator(s) Chaney, Ross, King

AN ACT TO FOSTER INCREASED ACCESS TO NEEDED HEALTH CARE SERVICES AMONG PERSONS WITHOUT THE ABILITY TO PAY FOR SUCH SERVICES BY PROVIDING CHARITABLE IMMUNITY FROM LIABILITY IN CERTAIN CIRCUMSTANCES; TO AMEND SECTIONS 43-13-125, 73-25-38 AND 95-9-1, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

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

SECTION 1. Any licensed physician who provides needed medical or health services to any person without the expectation of payment due to the inability of such person to pay for such services 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 except where the qualified physician engages in acts or omissions which are intentional, willful, wanton, reckless, malicious or grossly negligent.

SECTION 2. Section 43-13-125, Mississippi Code of 1972, is amended as follows:

43-13-125. (1) If medical assistance is provided to a recipient under this article for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation, then the division shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery which the recipient may have against any such person, firm or corporation to the extent of the actual amount of the medical assistance payments made by the Division of Medicaid on behalf of the recipient. The recipient shall execute and deliver instruments and papers to do whatever is necessary to secure such rights and shall do nothing after said medical assistance is provided to prejudice the subrogation rights of the division. Court orders or agreements for reimbursement of Medicaid payments shall direct such payments to the Division of Medicaid, which shall be authorized to endorse any and all checks, drafts, money orders, or other negotiable instruments representing Medicaid payment recoveries that are received.

The division, with the approval of the Governor, may compromise or settle any such claim and execute a release of any claim it has by virtue of this section.

(2) The acceptance of medical assistance under this article or the making of a claim thereunder shall not affect the right of a recipient or his legal representative to recover the medical assistance payments made by the division as an element of special damages in any action at law; provided, however, that a copy of the pleadings shall be certified to the division at the time of the institution of suit, and proof of such notice shall be filed of record in such action. The division may, at any time before the trial on the facts, join in such action or may intervene therein. Any amount recovered by a recipient or his legal representative shall be applied as follows:

(a) The reasonable costs of the collection, including attorney's fees, as approved and allowed by the court in which such action is pending, or in case of settlement without suit, by the legal representative of the division;

(b) The actual amount of the medical assistance payments made by the division on behalf of the recipient; or such pro rata amount as may be arrived at by the legal representative of the division and the recipient's attorney, or as set by the court having jurisdiction; and

(c) Any excess shall be awarded to the recipient.

(3) No compromise of any claim by the recipient or his legal representative shall be binding upon or affect the rights of the division against the third party unless the division, with the approval of the Governor, has entered into the compromise. Any compromise effected by the recipient or his legal representative with the third party in the absence of advance notification to and approved by the division shall constitute conclusive evidence of the liability of the third party, and the division, in litigating its claim against said third party, shall be required only to prove the amount and correctness of its claim relating to such injury, disease or sickness. It is further provided that should the recipient or his legal representative fail to notify the division of the institution of legal proceedings against a third party for which the division has a cause of action, the facts relating to negligence and the liability of the third party, if judgment is rendered for the recipient, shall constitute conclusive evidence of liability in a subsequent action maintained by the division and only the amount and correctness of the division's claim relating to injuries, disease or sickness shall be tried before the court. The division shall be authorized in bringing such action against the third party and his insurer jointly or against the insurer alone.

(4) Nothing herein shall be construed to diminish or otherwise restrict the subrogation rights of the Division of Medicaid against a third party for medical assistance paid by the Division of Medicaid or the Medicaid Commission in behalf of the recipient as a result of injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against such a third party.

(5) Any amounts recovered by the division under this section shall, by the division, be placed to the credit of the funds appropriated for benefits under this article proportionate to the amounts provided by the state and federal governments respectively.

(6) Nothing in this section shall affect the immunity granted to a physician providing health services on a charitable basis as provided in Section 1 of Senate Bill No. ____, 2000 Regular Session.

SECTION 3. Section 73-25-38, Mississippi Code of 1972, is amended as follows:

73-25-38. (1) Any licensed physician or certified nurse practitioner who voluntarily provides needed medical or health services to any person without the expectation of payment due to the inability of such person to pay for said services 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. The immunity from liability granted by this section shall also extend to any church that operates a medical clinic for the purpose of providing charitable medical services to persons who are unable to pay for such services.

(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 4. Section 95-9-1, Mississippi Code of 1972, is amended as follows:

95-9-1. (1) For the purposes of this section, unless the context otherwise requires:

(a) "Qualified volunteer" means any person who freely provides services, goods or the use of real or personal property or equipment, without any compensation or charge to any volunteer agency in connection with a volunteer activity, including a physician who provides health services on a charitable basis as provided in Section 1 of Senate Bill No. ____, 2000 Regular Session. For purposes of this chapter, reimbursement of actual expenses, including travel expenses, necessarily incurred in the discharge of a member's duties, insurance coverage and workers' compensation coverage of volunteers, shall not be considered monetary compensation.

(b) "Volunteer agency" means any department, institution, community volunteer organization or any nonprofit corporation designated 501(c)(3) by the United States Internal Revenue Service, except an agency established primarily for the recreational benefit of its stockholders or members. Volunteer agency shall also include any volunteer fire fighter association which is eligible to be designated as a nonprofit corporation under 501(c)(3) by the United States Internal Revenue Service.

(c) "Volunteer activity" means any activity within the scope of any project, program or other activity regularly sponsored by a volunteer agency with the intent to effect a charitable purpose, or other public benefit including, but not limited to, fire protection, rescue services, the enhancement of the cultural, civic, religious, educational, scientific or economic resources of the community or equine activity as provided in Section 95-11-1 et seq.

(2) A qualified volunteer shall not be held vicariously liable for the negligence of another in connection with or as a consequence of his volunteer activities.

(3) A qualified volunteer who renders assistance to a participant in, or a recipient, consumer or user of the services or benefits of a volunteer activity shall not be liable for any civil damages for any personal injury or property damage caused to a person as a result of any acts or omissions committed in good faith except:

(a) Where the qualified volunteer engages in acts or omissions which are intentional, willful, wanton, reckless or grossly negligent; or

(b) Where the qualified volunteer negligently operates a motor vehicle, aircraft, boat or other powered mode of conveyance.

SECTION 5. This act shall take effect and be in force from and after July 1, 2000, and shall apply only to causes of action accruing from and after that date.