MISSISSIPPI LEGISLATURE
2002 3rd Extraordinary Session
To: Select Senate Cmte on Civil Justice Syst
By: Senator(s) Smith
AN ACT TO AMEND SECTION 11-11-3, MISSISSIPPI CODE OF 1972, TO REVISE THE VENUE IN MEDICAL MALPRACTICE ACTIONS; TO CREATE NEW SECTION 11-1-62, MISSISSIPPI CODE OF 1972, TO PROVIDE IMMUNITY UNDER CERTAIN CONDITIONS TO PHYSICIANS AND OTHER LICENSED PROFESSIONALS IN CIVIL ACTIONS ALLEGING DAMAGES CAUSED BY PRESCRIPTION DRUGS; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO IMPOSE A LIMITATION ON PUNITIVE DAMAGES IN MEDICAL MALPRACTICE ACTIONS; TO PROVIDE IMMUNITY FROM LIABILITY TO PHYSICIANS AND NURSE PRACTITIONERS WHO PROVIDE HEALTH SERVICES AT SCHOOLS, AND TO PHYSICIANS WHO RENDER MEDICAL SERVICE UNDER A SPECIAL VOLUNTEER MEDICAL LICENSE, ON A CHARITABLE BASIS; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MEDICAL PRACTITIONERS COVERED UNDER THE TORT CLAIMS ACT ARE ONLY LIABLE FOR THEIR PERCENTAGE OF FAULT IN CIVIL ACTIONS; TO AMEND SECTION 43-11-1, MISSISSIPPI CODE OF 1972, TO DEFINE MEDICAL RECORDS MADE OR MAINTAINED IN INSTITUTIONS FOR THE AGED OR INFIRM; TO CREATE NEW SECTION 43-11-16, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CONFIDENTIALITY OF MEDICAL RECORDS MADE OR MAINTAINED IN INSTITUTIONS FOR THE AGED OR INFIRM; TO AMEND SECTION 15-1-36, MISSISSIPPI CODE OF 1972, TO REVISE THE STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS AGAINST INSTITUTIONS FOR THE AGED OR INFIRM, AND TO REQUIRE 90-DAY'S WRITTEN NOTICE OF INTENTION TO SUE; TO AMEND SECTION 11-46-1, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "EMPLOYEE" UNDER THE TORT CLAIMS ACT; TO PROVIDE LIMITATIONS ON NONECONOMIC DAMAGES IN CIVIL ACTIONS; TO CREATE NEW SECTION 41-105-1, MISSISSIPPI CODE OF 1972, TO ENACT A SHORT TITLE FOR THE MISSISSIPPI CARE ACCESS AND RELIABILITY ENHANCEMENT (CARE) ACT; TO CREATE NEW SECTION 41-105-3, MISSISSIPPI CODE OF 1972, TO MAKE LEGISLATIVE FINDINGS; TO CREATE NEW SECTION 41-105-5, MISSISSIPPI CODE OF 1972, TO SPECIFY THE PURPOSE AND SCOPE OF THE MISSISSIPPI CARE ACT; TO CREATE NEW SECTION 41-105-7, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 41-105-9, MISSISSIPPI CODE OF 1972, TO CREATE THE MISSISSIPPI CARE AUTHORITY AND BOARD OF DIRECTORS; TO CREATE NEW SECTION 41-105-11, MISSISSIPPI CODE OF 1972, TO SPECIFY THE POWERS AND DUTIES OF THE AUTHORITY; TO CREATE NEW SECTION 41-105-13, MISSISSIPPI CODE OF 1972, TO INDEMNIFY THE CARE BOARD AND ITS EMPLOYEES FROM LIABILITY; TO CREATE NEW SECTION 41-105-15, MISSISSIPPI CODE OF 1972, TO SPECIFY THE QUALIFICATIONS OF PARTICIPATING HEALTH-CARE PROVIDERS; TO CREATE NEW SECTION 41-105-17, MISSISSIPPI CODE OF 1972, TO SPECIFY REQUIREMENTS TO ESTABLISH FINANCIAL RESPONSIBILITY OF A PARTICIPATING HEALTH-CARE PROVIDER; TO CREATE NEW SECTION 41-105-19, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EXCLUSIVENESS OF THE REMEDIES AFFORDED BY THE MISSISSIPPI CARE ACT; TO CREATE NEW SECTION 41-105-21, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR FUNDING OF THE AUTHORITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-11-3, Mississippi Code of 1972, is amended as follows:
11-11-3. (1) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue, except where otherwise provided, and except actions of trespass on land, ejectment and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof is situated. If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.
(2) Civil actions for claims of medical malpractice or claims against institutions for the aged and infirm shall be commenced in the county where the cause of action occurred.
SECTION 2. The following shall be codified as Section 11-1-62, Mississippi Code of 1972:
11-1-62. (1) Absent any negligence on the part of the physician or other licensed professional who prescribes drugs, a cause of action alleging damages caused by a prescription drug shall not arise against that physician or other licensed professional, nor shall the physician or other licensed professional who prescribes drugs be liable, if the federal Food and Drug Administration (FDA) has approved that drug.
(2) Absent any negligence on the part of the pharmacist, a cause of action alleging damages caused by a prescription drug shall not arise against a pharmacist who dispenses a prescription drug, nor shall the pharmacist be liable, if the federal Food and Drug Administration (FDA) has approved that drug.
SECTION 3. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. In any action for damages caused by a product except for commercial damage to the product itself:
(a) Subject to the provisions of Section 11-1-62, the manufacturer, seller, distributor or prescriber of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, seller, distributor or prescriber:
(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.
(c) (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a)(i)2 of this section, the manufacturer, seller, distributor or prescriber shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, seller, distributor or prescriber, the manufacturer, seller, distributor or prescriber knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.
(ii) An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.
(d) For purposes of this section:
(i) "Seller" means any person or entity that sells products of any kind.
(ii) "Prescriber" means any person licensed by the State of Mississippi to prescribe medicine.
(e) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer, seller, distributor or prescriber shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.
(f) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, seller, distributor or prescriber shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.
(g) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) The manufacturer, seller, distributor or prescriber knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and
(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.
(h) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller, distributor or prescriber for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller, distributor or prescriber exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller, distributor or prescriber altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller, distributor or prescriber had actual knowledge of the defective condition of the product at the time he supplied same; or the seller, distributor or prescriber made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(ii) Subparagraph (i) shall not apply unless the seller, distributor or prescriber has given prompt notice of the suit to the manufacturer within thirty (30) days of the filing of the complaint against the seller.
(i) An agent or employee of a disclosed principal who directly participates in or authorizes the commission of a tort, shall be subject to liability for any tortious conduct committed within the course and scope of employment. The principal shall indemnify the agent or employee, for such acts committed as its agent or employee.
(j) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 4. Section 11-1-65, Mississippi Code of 1972, is amended as follows:
11-1-65. (1) In any action in which punitive damages are sought:
(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
(b) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.
(d) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount.
(e) In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.
(f) (i) Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.
(ii) In determining whether the award is excessive, the court shall take into consideration the following factors:
1. Whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred;
2. The degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct;
3. The financial condition and net worth of the defendant; and
4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct.
(g) In all civil actions for claims of medical malpractice or against institutions for the aged or infirm where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the greater of three (3) times the amount of the total compensatory damages awarded to the plaintiff in an action or Three Million Dollars ($3,000,000.00); however, if the defendant is an individual or a business with less than fifty (50) full-time employees, an award of punitive damages shall not exceed two (2) times the amount of the plaintiff's compensatory damages or Two Million Dollars ($2,000,000.00) or three percent (3%) of such defendant's net worth, whichever is less, unless the finder of fact and court find by clear and convincing evidence that the defendant acted with criminal intent to cause serious physical bodily injury. This restriction shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict.
(h) Nothing herein shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.
(2) The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(3) The provisions of Section 11-1-65 shall not apply to:
(a) Contracts;
(b) Libel and slander; or
(c) Causes of action for persons and property arising out of asbestos.
SECTION 5. (1) Any licensed physician or certified nurse practitioner who voluntarily provides needed medical or health services to any program at an accredited school in the state 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.
(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 6. Section 85-5-7, Mississippi Code of 1972, is amended as follows:
85-5-7. (1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including but not limited to negligence, malpractice, strict liability, absolute liability or failure to warn. "Fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent.
(2) Except as may be otherwise provided in subsections (6) and (8) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages.
(3) Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
(4) Any defendant held jointly liable under this section shall have a right of contribution against fellow joint tort-feasors. A defendant shall be held responsible for contribution to other joint tort-feasors only for the percentage of fault assessed to such defendant.
(5) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(6) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
(7) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.
(8) Physicians, dentists and other medical practitioners covered under the provisions of Section 11-46-1 et seq. shall only be liable for the amount of damages which is the percentage of fault allocated to such physician, dentist and other medical practitioners.
(9) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
SECTION 7. Section 43-11-1, Mississippi Code of 1972, is amended as follows:
43-11-1. When used in this chapter, the following words shall have the following meaning:
(a) "Institutions for the aged or infirm" means a place either governmental or private which provides group living arrangements for four (4) or more persons who are unrelated to the operator and who are being provided food, shelter and personal care whether any such place be organized or operated for profit or not. The term "institution for aged or infirm" includes nursing homes, pediatric skilled nursing facilities, psychiatric residential treatment facilities, convalescent homes and homes for the aged, provided that these institutions fall within the scope of the definitions set forth above. The term "institution for the aged or infirm" does not include hospitals, clinics or mental institutions devoted primarily to providing medical service.
(b) "Person" means any individual, firm, partnership, corporation, company, association or joint stock association, or any licensee herein or the legal successor thereof.
(c) "Personal care" means assistance rendered by personnel of the home to aged or infirm residents in performing one or more of the activities of daily living, which includes, but is not limited to, the bathing, walking, excretory functions, feeding, personal grooming and dressing of such residents.
(d) "Psychiatric residential treatment facility" means any nonhospital establishment with permanent facilities which provides a 24-hour program of care by qualified therapists including, but not limited to, duly licensed mental health professionals, psychiatrists, psychologists, psychotherapists and licensed certified social workers, for emotionally disturbed children and adolescents referred to such facility by a court, local school district or by the Department of Human Services, who are not in an acute phase of illness requiring the services of a psychiatric hospital, and are in need of such restorative treatment services. For purposes of this paragraph, the term "emotionally disturbed" means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:
1. An inability to learn which cannot be explained by intellectual, sensory or health factors;
2. An inability to build or maintain satisfactory relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression; or
5. A tendency to develop physical symptoms or fears associated with personal or school problems. An establishment furnishing primarily domiciliary care is not within this definition.
(e) "Pediatric skilled nursing facility" means an institution or a distinct part of an institution that is primarily engaged in providing to inpatients skilled nursing care and related services for persons under twenty-one (21) years of age who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled or sick persons.
(f) "Licensing agency" means the State Department of Health.
(g) "Medical records" means, without restriction, those medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, x-rays and other written or graphic data prepared, kept, made or maintained in institutions for the aged or infirm that pertain to residency in, or services rendered to residents of, an institution for the aged or infirm.
SECTION 8. The following shall be codified as Section 43-11-16, Mississippi Code of 1972:
43-11-16. Medical records are and shall remain the property of the various institutions for the aged and infirm, subject
however to reasonable access to the information contained therein upon request of the resident of the institution to whom the medical records apply, his personal representatives or heirs, his attending medical personnel and his duly authorized nominees, and upon payment of any reasonable charges for such service. Nothing in this section shall be construed to deny access to medical records by the licensing agency in the discharge of its official duties under this chapter. Except as otherwise provided by law, medical records shall not constitute public records and nothing in this section shall be deemed to impair any privilege of confidence conferred by law or the Mississippi Rules of Evidence on residents, their personal representatives or heirs by Section 13-1-21.
SECTION 9. Section 15-1-36, Mississippi Code of 1972, is amended as follows:
15-1-36. (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred:
(a) In the event a foreign object introduced during a surgical or medical procedure has been left in a patient's body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient's body.
(b) In the event the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.
(3) Except as otherwise provided in subsection (4) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.
(4) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.
(5) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.
(6) When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under Section 15-1-55, Mississippi Code of 1972.
(7) For the purposes of subsection (3) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday.
(8) For the purposes of subsection (4) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday or from and after such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.
(9) The limitation established by this section as to a licensed physician, osteopath, dentist, hospital or nurse shall apply only to actions the cause of which accrued on or after July 1, 1976.
(10) The limitation established by this section as to pharmacists shall apply only to actions the cause of which accrued on or after July 1, 1978.
(11) The limitation established by this section as to podiatrists shall apply only to actions the cause of which accrued on or after July 1, 1979.
(12) The limitation established by this section as to optometrists and chiropractors shall apply only to actions the cause of which accrued on or after July 1, 1983.
(13) The limitation established by this section as to actions commenced on behalf of minors shall apply only to actions the cause of which accrued on or after July 1, 1989.
(14) The limitation established by this section as to institutions for the aged or infirm shall apply only to actions the cause of which accrued after the passage of House Bill No. 2, Third Extraordinary Session of 2002.
(15) No action based upon the health-care provider's professional negligence may be begun unless the defendant has been given at least ninety (90) days' prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within ninety (90) days of the expiration of the applicable statute of limitations, the time for the beginning of the action shall be extended ninety (90) days from the service of the notice. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
SECTION 10. Section 11-46-1, Mississippi Code of 1972, is amended as follows:
11-46-1. As used in this chapter the following terms shall have the meanings herein ascribed unless the context otherwise requires:
(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.
(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.
(c) "Board" means the Mississippi Tort Claims Board.
(d) "Department" means the Department of Finance and Administration.
(e) "Director" means the executive director of the department who is also the executive director of the board.
(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; provided, however, that for purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under such contract. The term "employee" shall also include any physician, dentist or other medical practitioner under contract or affiliated with or employed by the University of Mississippi Medical Center, its departmental practice plans, or who practices on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning. The term "employee" shall also include any physician, dentist or other medical practitioner under contract or affiliated with or employed by the State Veterans Affairs Board. The term "employee" shall also include Mississippi Department of Human Services licensed foster parents for the limited purposes of coverage under the Tort Claims Act as provided in Section 11-46-8.
(g) "Governmental entity" means and includes the state and political subdivisions as herein defined.
(h) "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.
(i) "Political subdivision" means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, community hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.
(j) "State" means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.
(k) "Law" means all species of law, including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.
SECTION 11. (1) Except as provided in Section 41-105-15, compensation for the noneconomic damages suffered by an injured plaintiff in any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services by a provider of health care shall not exceed the amount of Five Hundred Thousand Dollars ($500,000.00).
(2) If liability is found, then the trier of fact, in addition to other appropriate findings, shall make separate findings specifying the total amount of noneconomic damages and the total amount of actual economic damages for each separate claimant in a manner that the court may apply the restrictions of this section.
(3) The trier of fact shall not be advised of the limitations imposed by this section.
(4) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Noneconomic damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, injury to reputation, humiliation, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term "noneconomic damages" shall not include punitive damages.
(b) "Actual economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair of replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
SECTION 12. The following shall be codified as Section 41-105-1, Mississippi Code of 1972:
41-105-1. Short title. Sections 41-105-1 through 41-105-21 shall be known and may be cited as the "Mississippi Care Access and Reliability Enhancement Act" or the "Mississippi CARE Act."
SECTION 13. The following shall be codified as Section 41-105-3, Mississippi Code of 1972:
41-105-3. Legislative findings. It is hereby declared:
(a) That there exists in the State of Mississippi a severe shortage of quality, affordable health care;
(b) That this shortage contributes to the creation and persistence of substandard health care for many Mississippians and is damaging to the health, welfare and prosperity of all of the residents of the State of Mississippi;
(c) That this shortage disproportionately affects children, the poor, the elderly and public employees;
(d) That this shortage can be significantly ameliorated through the creation and maintenance of a nonprofit authority with powers to encourage the provision of health care to all Mississippians, and particularly to children, the poor, the elderly and public employees;
(e) That there now exists an emergency situation created by this shortage; and
(f) That it is in the public interest that the creation and funding of a nonprofit authority to address these issues be implemented and effected immediately in order to remedy such emergency situation.
SECTION 14. The following shall be codified as Section 41-105-5, Mississippi Code of 1972:
41-105-5. Purpose and scope. (1) The purpose of the Mississippi CARE Act is to create a framework to ensure that quality, affordable health care will be available to Mississippi's patients, and particularly patients participating in the Medicaid, Medicare, Children's Health Insurance Program, and State Health Insurance Programs.
(2) The provisions of this act shall apply to all participating health-care providers as defined in Section 41-105-7.
SECTION 15. The following shall be codified as Section 41-105-7, Mississippi Code of 1972:
41-105-7. Definitions. As used in this chapter, the following words shall have the meaning ascribed herein unless the context clearly requires otherwise:
(a) "Authority" means the Mississippi Care Access and Reliability Enhancement Authority created in Section 41-105-9.
(b) "Board" means the Mississippi CARE Board of Directors created in Section 41-105-9.
(c) "Court" means a court of competent jurisdiction and proper venue over the parties.
(d) "Gross malpractice" means failure to exercise the required degree of care, skill or knowledge that amounts to: (i) a conscious indifference to the consequences which may result from the gross malpractice; and (ii) a disregard for and indifference to the safety and welfare of the patient.
(e) "Health care" means any act, or treatment performed or furnished, or which should have been performed or furnished, by any health-care provider for, to, or on behalf of a patient during the patient's medical care, treatment or confinement.
(f) "Health-care provider" means (i) a person, partnership, limited liability entity or corporation licensed or certified or authorized by state or federal law to provide professional health-care service in this state to an individual during that individual's health care, treatment or confinement; and (ii) a health care facility or institution, whether public or private, proprietary or nonprofit, which offers diagnosis, treatment, inpatient or ambulatory care to two (2) or more unrelated persons.
(g) "Malpractice" means any unintentional tort 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.
(h) "Medical costs and related economic damages" means all reasonable medical, surgical, hospitalization, physical rehabilitation, custodial services and related economic damages, including prescription drugs, care, custody, prosthetic devices and other similar materials reasonably necessary in the provision of such services, and loss of earnings and loss of earning capacity after the date of the injury. Medical costs and related economic damages shall not include any noneconomic damages.
(i) "Noneconomic damages" means any damages which compensate for pain, suffering, inconvenience and other nonpecuniary damages.
(j) "Participating health-care provider" means any health-care provider who meets the qualification requirements set forth in Section 41-105-15 and shall include all officers and employees of such participating health-care provider, provided that in the event such officers or employees individually fall within the definition of a health-care provider as set forth in this section, then such officers and employees must each individually meet the qualification requirements set forth in Section 41-105-15.
(k) "Patient" means a natural person who receives or should have received health care from a licensed health-care provider, under a contract, express or implied.
(l) "Patient's Lifetime Adequate Necessities Fund" or "PLAN Fund" means the fund to be created pursuant to the provisions of Section 41-105-11(2).
(m) "Person" means an individual, corporation, limited liability entity, partnership, association, joint stock company, trust, unincorporated organization, any similar entity or any combination of the foregoing acting in concert.
SECTION 16. The following shall be codified as Section 41-105-9, Mississippi Code of 1972:
41-105-9. Mississippi CARE Authority. (1) There is hereby created a nonprofit legal entity to be known as the Mississippi Care Access and Reliability Enhancement Authority or the authority.
(2) The authority shall be governed by and shall operate subject to the supervision and approval of a nine-member board of directors. All appointees shall be persons with related business, financial, legal or other relevant expertise.
SECTION 17. The following shall be codified as Section 41-105-11, Mississippi Code of 1972:
41-105-11. Mississippi CARE Authority powers and duties. (1) The authority shall create and administer a mandatory medical review process in accordance with the requirements of this section.
(a) The medical review process shall provide for the review of all malpractice claims against participating health-care providers by a medical review panel. No action against a participating health-care provider or his insurer may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel.
(b) A medical review panel shall issue an expert opinion concerning the malpractice claim which shall be admissible as evidence in any action subsequently brought by the claimant in a court of law. Such expert opinion shall not be conclusive. 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.
(c) The members of a medical review panel shall consist of three (3) participating health-care providers who hold unlimited licenses to practice their profession in Mississippi and one (1) duly licensed attorney. The members of a medical review panel shall be appointed by the board.
(d) The filing of a request for a review of a claim by a medical review panel shall suspend the time within which suit must be instituted until ninety (90) days following notification, by certified mail, to the claimant or his attorney of the issuance of the opinion by a medical review panel.
(e) The authority shall adopt policies and procedures for the medical review process, including without limitation rules and procedures for the appointment of the members of a medical review panel, the presentation of evidence, payment of costs and fees, witnesses, and the issuance of opinions by the medical review panel.
(2) There shall be created in the State Treasury the Patient's Lifetime Adequate Necessities Fund, to be known as the PLAN Fund, in accordance with the requirements of this section.
(a) In the event that a judgment, settlement or final award in an arbitration proceeding exceeds the total liability of all participating health-care providers as provided in Section 41-105-15(2)(b), then application may be made to the authority for payment out of the PLAN Fund for that portion of such excess judgment, settlement or final arbitration award that is determined by the authority to constitute eligible medical costs and related economic damages.
(b) The authority shall adopt policies and procedures for the administration of the PLAN Fund. Such policies and procedures shall be included in the plan of operation required by Section 41-105-11(4).
(c) Jurisdiction for appeals of decisions of the authority with respect to the PLAN Fund shall be exclusively with the Chancery Court in the First Judicial District of Hinds County, Mississippi. Such appeals shall be conducted based on the record made with the authority and not as a trial de novo.
(3) The authority may exercise powers granted to insurers under the laws of this state to write or otherwise make available medical malpractice insurance in the State of Mississippi. The insurance functions of the authority shall be subject to the insurance laws of the State of Mississippi applicable to insurers writing similar lines of insurance.
(4) The authority shall adopt a plan of operation for purposes of implementing this chapter, including the provisions of Section 41-105-19, and submit its plan of operation to the Mississippi Commissioner of Insurance for approval.
(5) The authority may take any legal actions necessary or proper to accomplish the purposes set forth in this chapter, including without limitation, entering into contracts, suing or being sued, and appointing appropriate administrative, legal, accounting, actuarial and other persons as necessary to provide assistance in the operation of the authority. The authority is authorized to borrow money to effect the purposes of the authority.
(6) The Mississippi Commissioner of Insurance may, by rule, establish additional powers and duties of the board and may adopt such rules as are necessary and proper to implement this chapter. The Mississippi Commissioner of Insurance shall have the power to retain accountants, attorneys, actuaries and any other experts he deems necessary to carry out his responsibilities under this chapter.
(7) The Mississippi Commissioner of Insurance shall examine and investigate the authority and make an annual report to the Legislature and the Governor thereon.
(8) If the board at any time determines that the authority lacks sufficient funds to conduct all or any part of its operations in accordance with the Mississippi CARE Act, then the board may suspend or terminate all or any part of the operations of the authority until such time as the board determines that adequate funds are available to conduct such suspended or terminated operations; provided, however, the board must have the approval of the Mississippi Commissioner of Insurance prior to suspending or terminating any insurance functions of the authority. Notice of any such suspension or termination of operations, and of the resumption of any suspended or terminated operations, shall be given to the Governor, the Legislature, the Mississippi Commissioner of Insurance and all participating health-care providers.
SECTION 18. The following shall be codified as Section 41-105-13, Mississippi Code of 1972:
41-105-13. Liability, indemnification and legal representation. Neither the CARE Board nor its employees shall be liable for any obligations of the authority. There shall be no liability on the part of and no cause of action shall arise against the authority or its agents or employees, members of the board of directors, the Commissioner of Insurance or his representatives for any action or omission by them in the performance of their powers and duties under this chapter. The board may provide in its bylaws or rules for indemnification of, and legal representation for, its members, agents and employees.
SECTION 19. The following shall be codified as Section 41-105-15, Mississippi Code of 1972:
41-105-15. Participating health-care providers. (1) In order to be qualified as a participating health-care provider and to participate in the provisions of this chapter, a health-care provider must:
(a) Meet the proof of financial responsibility requirements as set forth in Section 41-105-17.
(b) Cause to be filed with the board a written agreement, the form and substance of which shall be determined by the board, signed by a duly authorized representative, that the health-care provider will provide services to (i) Medicaid recipients, (ii) Medicare recipients, (iii) Children's Health Insurance Program participants, and (iv) State Health Insurance Program participants. Such written agreement shall provide, among other things, that the health-care provider will provide services to Medicaid recipients, Medicare recipients, Children's Health Insurance Program participants, and State Health Insurance Program participants in a manner that is comparable to the services provided to all other patients and shall be made without balance billing to the patient.
(c) Pay all surcharges assessed according to Section 41-105-11(2).
(2) Except as specifically set forth in Section 41-105-15(3), the total amount recoverable for all malpractice claims brought against all participating health-care providers involved in any one (1) incident of injury to or death of any one (1) patient, shall be limited to the following:
(a) Up to Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages; and
(b) Up to Two Hundred Fifty Thousand Dollars ($250,000.00) for medical costs and related economic damages; provided, however, that in the event that a judgment, settlement or final award in an arbitration proceeding exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) for medical costs and related economic damages, then application may be made to the authority for payment out of the PLAN Fund in accordance with the provision of Section 41-105-11(2)(b). Payments from the PLAN Fund shall be paid to the patient as periodic payments in such manner as determined by the authority.
(3) The limitation on noneconomic damages as set forth in Sections 41-105-15(2)(a) and 41-105-15(4) does not apply in the following circumstances and types of cases:
(a) A case in which the conduct of the defendant is determined to constitute gross malpractice; or
(b) A case in which, following return of a verdict by the jury or a finding of damages in a bench trial, the court determines, by clear and convincing evidence admitted at trial, that an award in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) for noneconomic damages is justified because of exceptional circumstances.
(4) No liability shall be imposed upon any participating health-care provider on the basis of an alleged breach of contract, whether by express or implied warranty, assuring results to be obtained from any procedure undertaken in the course of health care, unless such contract is expressly set forth in writing and signed by such participating health-care provider or by an authorized agent of such participating health-care provider.
(5) The liability limitations set forth in Section 41-105-15(2) shall be adjusted for inflation annually. The adjustment made pursuant to this paragraph shall be rounded upward or downward to the nearest increment of Ten Dollars ($10.00). The authority shall make available the cost of living increase calculations, if any, as soon as such information becomes available each year.
SECTION 20. The following shall be codified as Section 41-105-17, Mississippi Code of 1972:
41-105-17. Proof of financial responsibility. (1) Financial responsibility of a participating health-care provider may be established by either:
(a) Filing with the board proof that the participating health-care provider is adequately insured for its exposure under this chapter by a policy of malpractice liability insurance approved by the board from an insurance company approved by the board; or
(b) Maintaining on deposit with the board an amount approved by the board to adequately cover its exposure under this chapter in the form of cash or other collateral approved by the board.
(2) The policy of malpractice liability insurance required by Section 41-105-17(1)(a) may be issued, in form approved by the authority, by any company created pursuant to Sections 83-47-1 et seq. or any other insurance company approved by the board.
(3) Any properly licensed agent may sell any policy of malpractice liability insurance approved by the board from an insurance company approved by the board to participating health-care providers in accordance with this chapter.
SECTION 21. The following shall be codified as Section 41-105-19, Mississippi Code of 1972:
41-105-19. Additional protections; exclusive remedy. (1) The Mississippi CARE Act shall not limit or preempt any protections or liability limitations afforded to participating health-care providers.
(2) Except to the extent that other applicable law would further limit the remedies available (and in such event such limited remedy shall apply), the remedy provided by this chapter against a participating health-care provider is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the participating health-care provider for the act or omission which gave rise to the claim or suit, and any claim made or suit filed against a participating health-care provider to recover damages for any malpractice injury shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.
SECTION 22. The following shall be codified as Section 41-105-21, Mississippi Code of 1972:
41-105-21. Funding of authority. Reasonable expenses of the authority incurred in connection with the execution of its authority under this chapter, including without limitation, expenses for start-up costs, operations and insurance reserves shall be provided from any available funds, pursuant to appropriation by the Legislature.
The plan of operation adopted by the board shall provide that, from time to time, the board shall determine whether and to what extent its income, including without limitation, any premiums and surcharges collected, exceeds anticipated or actual expenses and reasonable reserves and the board shall pay such excess amounts to the Health Care Expendable Fund.
SECTION 23. This act shall take effect and be in force from and after its passage and shall apply only to causes of action accruing on or after that date; provided, however, that Section 6 of this act shall take effect and be in force from and after its passage and shall apply to all causes of action pending on, and filed after, that date.