MISSISSIPPI LEGISLATURE
2003 Regular Session
To: Insurance; Appropriations
By: Senator(s) Kirby, King, Mettetal, Dawkins, Lee, Harvey, Horhn, Browning, Hewes, Thames, Johnson (19th), White, Dearing, Stogner, Cuevas, Canon, Carmichael, Nunnelee, Smith, Furniss, Jordan, Harden, Gordon, Robertson, Dickerson, Williamson, Johnson (38th), Chamberlin, Burton, Walls, Jackson, Frazier, Tollison, Chaney, Little
AN ACT TO CREATE THE "MISSISSIPPI MEDICAL MALPRACTICE INSURANCE AVAILABILITY ACT"; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE ESTABLISHMENT OF THE MEDICAL MALPRACTICE INSURANCE AVAILABILITY PLAN TO BE FUNDED BY THE PARTICIPANTS IN THE PLAN; TO PROVIDE THAT THE TORT CLAIMS BOARD SHALL PROMULGATE RULES AND REGULATIONS TO ADMINISTER THE PLAN; TO PROVIDE QUALIFICATIONS IN ORDER TO PARTICIPATE IN THE PLAN; TO AUTHORIZE THE TORT CLAIMS BOARD TO CONTRACT THE ADMINISTRATION OF CLAIMS AND SERVICE OF THE PLAN TO A THIRD PARTY; TO AMEND SECTION 11-46-19, MISSISSIPPI CODE OF 1972, TO CONFORM THERETO; TO AMEND SECTION 11-46-17, MISSISSIPPI CODE OF 1972, TO REQUIRE HOSPITALS OWNED AND OPERATED BY POLITICAL SUBDIVISIONS TO PARTICIPATE UNDER THE TORT CLAIMS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Sections 1 through 4 of this act may be cited as the "Mississippi Medical Malpractice Insurance Availability Act."
SECTION 2. The purpose of Sections 1 through 4 of this act is to provide necessary medical malpractice insurance available for hospitals, institutions for the aged or infirm, physicians, nurses or other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi.
SECTION 3. As used in Sections 1 through 4 of this act, the following terms shall have the meaning ascribed herein unless the context clearly requires otherwise:
(a) "Plan" means the Medical Malpractice Insurance Availability Plan established under Sections 1 through 4 of this act.
(b) "Board" means the Mississippi Tort Claims Board created in Section 11-46-18.
(c) "Medical malpractice insurance" means insurance coverage against the legal liability of the insured and against loss, damage or expense incident to a claim arising out of the death or injury of any person as the result of negligence or malpractice in rendering professional service by any physician, nurse or health care facility who is fully licensed, whose license is current and who is not under any restriction by the respective board of licensure.
(d) "Physician" means a person who is fully licensed under Section 73-25-1 et seq., whose license is current and who is not under any restriction by the Board of Medical Licensure.
(e) "Other personnel" means persons, other than physicians or nurses who are covered by professional medical or hospital liability coverage, or both.
SECTION 4. (1) The board shall establish the Medical Malpractice Insurance Availability Plan that shall be funded by the participants in the plan.
(2) The purpose of the plan is to provide availability of medical malpractice insurance to the participants on a self-supporting basis.
(3) The board shall promulgate rules and regulations to ensure that the plan remains actuarially sound.
(4) The plan may issue, or cause to be issued, policies of medical malpractice insurance to hospitals, institutions for the aged or infirm, physicians, nurses or other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi.
(5) Sections 1 through 4 of this act shall not preclude any hospital, institution for the aged or infirm, physician, nurse or other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi from procuring medical malpractice insurance from sources other than the plan.
(6) The plan shall issue, or cause to be issued, policies of insurance to applicants, including incidental coverages, subject to terms and conditions as determined by the board. All rates applicable to the insurance provided herein shall be established by the board's actuaries and shall be calculated to be self-supporting.
(7) In order to participate in the plan, a health care provider must:
(a) 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, and (ii) State and School Employees Health Insurance Plan participants. Such written agreement shall provide, among other things, that the health care provider will provide services to Medicaid recipients, and State and School Employees' Health Insurance Plan 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.
(b) Pay all assessments and premiums established by the board.
(8) The board shall be responsible for the day-to-day management and administration of the insurance plan.
(9) The board may contract the administration of claims and service of the self-insured plan to a third party.
SECTION 5. Section 11-46-19, Mississippi Code of 1972, is amended as follows:
11-46-19. (1) The board shall have the following powers:
(a) To provide oversight over the Tort Claims Fund;
(b) To approve any award made from the Tort Claims Fund;
(c) To pay all necessary expenses attributable to the operation of the Tort Claims Fund from such fund;
(d) To assign litigated claims against governmental entities other than political subdivisions to competent attorneys unless such governmental entity has a staff attorney who is competent to represent the governmental entity and is approved by the board; the board shall give primary consideration to attorneys practicing in the jurisdiction where the claim arose in assigning cases; attorneys hired to represent a governmental entity other than a political subdivision shall be paid according to the department fee schedule;
(e) To approve all claimants' attorney fees in claims against the state;
(f) To employ on a full-time basis a staff attorney who shall possess the minimum qualifications required to be a member of The Mississippi Bar, and such other staff as it may deem necessary to carry out the purposes of this chapter; the employees in the positions approved by the board shall be hired by the director, shall be employees of the department, and shall be compensated from the Tort Claims Fund;
(g) To contract with one or more reputable insurance consulting firms as may be necessary;
(h) To purchase any policies of liability insurance and to administer any plan of self-insurance or policies of liability insurance required for the protection of the state against claims and suits brought under this chapter;
(i) To expend money from the Tort Claims Fund for the purchase of any policies of liability insurance and the payment of any award or settlement of a claim against the state under the provisions of this chapter or of a claim against any school district, junior college or community college district, or state agency, arising from the operation of school buses or other vehicles, under the provisions of Section 37-41-42;
(j) To cancel, modify or replace any policy or policies of liability insurance procured by the board;
(k) To issue certificates of coverage to governmental entities, including any political subdivision participating in any plan of liability protection approved by the board;
(l) To review and approve or reject any plan of liability insurance or self-insurance reserves proposed or provided by political subdivisions if such plan is intended to serve as security for risks of claims and suits against them for which immunity has been waived under this chapter;
(m) To administer disposition of claims against the Tort Claims Fund;
(n) To withhold issuance of any warrants payable from funds of a participating state entity should such entity fail to make required contributions to the Tort Claims Fund in the time and manner prescribed by the board;
(o) To develop a comprehensive statewide list of attorneys who are qualified to represent the state and any employee thereof named as a defendant in a claim brought under this chapter against the state or such employee;
(p) To develop a schedule of fees for paying attorneys defending claims against the state or an employee thereof;
(q) To adopt and promulgate such reasonable rules and regulations and to do and perform all such acts as are necessary to carry out its powers and duties under this chapter;
(r) To establish and assess premiums to be paid by governmental entities required to participate in the Tort Claims Fund;
(s) To contract with a third-party administrator to process claims against the state under this chapter;
(t) To annually submit its budget request to the Legislature as a state agency; * * *
(u) To dispose of salvage obtained in settlement or payment of any claim at fair market value by such means and upon such terms as the board may think best;
(v) To administer the Medical Malpractice Insurance Availability Plan created in Section 4 of Senate Bill No. 2628, 2003 Regular Session, to assess the participants of the plan, to adopt such rules and regulations, to accept, place and expend funds received from participants of the plan, and to retain accountants, attorneys, actuaries and any other experts deemed necessary to carry out the responsibilities under Sections 1 through 4 of Senate Bill No. 2628, 2003 Regular Session; and
(w) To expend money from the Tort Claims Fund in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00) for the start-up costs of administering the Medical Malpractice Insurance Availability Plan.
(2) Policies of liability insurance purchased for the protection of governmental entities against claims and suits brought under this chapter shall be purchased pursuant to the competitive bidding procedures set forth in Section 31-7-13.
(3) The department shall have the following powers and duties:
(a) To annually report to the Legislature concerning each comprehensive plan of liability protection established pursuant to Section 11-46-17(2). Such report shall include a comprehensive analysis of the cost of the plan, a breakdown of the cost to participating state entities, and such other information as the department may deem necessary.
(b) To provide the board with any staff and meeting facilities as may be necessary to carry out the duties of the board as provided in this chapter.
(c) To submit the board's budget request for the initial year of operation of the board in order to authorize expenditures for the 1993-1994 fiscal year and for the appropriation of such general funds as shall be required for the commencement of its activities.
SECTION 6. Section 11-46-17, Mississippi Code of 1972, is amended as follows:
11-46-17. (1) There is hereby created in the State Treasury a special fund to be known as the "Tort Claims Fund."
All such monies as the Department of Finance and Administration shall receive and collect under the provisions of subsection (2) of this section and all such funds as the Legislature may appropriate for use by the board in administering the provisions of this chapter shall be deposited in such fund. All monies in the fund may be expended by the board for any and all purposes for which the board is authorized to expend funds under the provisions of this chapter. All interest earned from the investment of monies in the fund shall be credited to the fund. Monies remaining in such fund at the end of a fiscal year shall not lapse into the State General Fund.
(2) From and after July 1, 1993, each governmental entity other than political subdivisions shall participate in a comprehensive plan of self-insurance and/or one or more policies of liability insurance administered by the Department of Finance and Administration. Such plan shall provide coverage to each of such governmental entities for every risk for which the board determines the respective governmental entities to be liable in the event of a claim or suit for injuries under the provisions of this chapter, including claims or suits for injuries from the use or operation of motor vehicles; provided, however, that the board may allow such plan to contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to governmental entities. In addition to the coverage authorized in the preceding sentence, the plan may provide coverage for liabilities outside the provisions of this chapter, including, but not limited to, liabilities arising from Sections 1983 through 1987 of Title 42 of the United States Code and liabilities from actions brought in foreign jurisdictions, and the board shall establish limits of coverage for such liabilities. Each governmental entity participating in the plan shall make payments to the board in such amounts, times and manner determined by the board as the board deems necessary to provide sufficient funds to be available for payment by the board of such costs as it incurs in providing coverage for the governmental entity. Each governmental entity of the state other than the political subdivisions thereof participating in the plan procured by the board shall be issued by the board a certificate of coverage whose form and content shall be determined by the board but which shall have the effect of certifying that in the opinion of the board each of such governmental entities is adequately insured.
Prior to July 1, 1993, the Board of Trustees of State Institutions of Higher Learning may provide such liability coverage for each university, department, trustee, employee, volunteer, facility and activity as the board of trustees, in its discretion, shall determine advisable. If liability coverage, either through insurance policies or self-insurance retention is in effect, immunity from suit shall be waived only to the limit of liability established by such insurance or self-insurance program. From and after July 1, 1993, such liability coverage established by the board of trustees must conform to the provisions of this section and must receive approval from the board. Should the board reject such plan, the board of trustees shall participate in the liability program for state agencies established by the board.
(3) All political subdivisions shall, from and after October 1, 1993, obtain such policy or policies of insurance, establish such self-insurance reserves, or provide a combination of such insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; except any political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause of action against such political subdivision relative to limits of liability under the Tort Claims Act. Such policy or policies of insurance or such self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All such plans of insurance and/or reserves shall be submitted for approval to the board. The board shall issue a certificate of coverage to each political subdivision whose plan of insurance and/or reserves it approves in the same manner as provided in subsection (2) of this section. Whenever any political subdivision fails to obtain the board's approval of any plan of insurance and/or reserves, the political subdivision shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance and/or reserves to be approved by the board. Notwithstanding any provision to the contrary, any hospital owned and operated by a political subdivision shall participate in a comprehensive plan of self-insurance and/or one or more policies of liability insurance under the Tort Claims Act and administered by the board.
(4) Any governmental entity of the state may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of such excess insurance carried; provided, however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of such excess liability insurance carried.
(5) Any two (2) or more political subdivisions are hereby authorized to enter into agreement and to contract between and among themselves for the purpose of pooling their liabilities as a group under this chapter. Such pooling agreements and contracts may provide for the purchase of one or more policies of liability insurance and/or the establishment of self-insurance reserves and shall be subject to approval by the board in the manner provided in subsections (2) and (3) of this section.
(6) The board shall have subrogation rights against a third party for amounts paid out of any plan of self-insurance administered by such board pursuant to this section in behalf of a governmental entity as a result of damages caused under circumstances creating a cause of action in favor of such governmental entity against a third party. The board shall deposit in the Tort Claims Fund all monies received in connection with the settlement or payment of any claim, including proceeds from the sale of salvage.
SECTION 7. This act shall take effect and be in force from and after its passage, and shall stand repealed from and after July 1, 2005.