MISSISSIPPI LEGISLATURE

2004 1st Extraordinary Session

To: Judiciary A

By: Representative Blackmon

House Bill 2

(COMMITTEE SUBSTITUTE)

AN ACT TO AMEND SECTION 11-11-3, MISSISSIPPI CODE OF 1972, TO REVISE THE VENUE IN GENERAL CIVIL ACTIONS; TO PROVIDE FOR CLASS ACTIONS; TO AMEND SECTION 11-1-66, MISSISSIPPI CODE OF 1972, TO REVISE PREMISES LIABILITY; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO REVISE JOINT AND SEVERAL LIABILITY; TO AMEND SECTION 13-5-1, MISSISSIPPI CODE OF 1972, TO ELIMINATE CERTAIN JUROR DISQUALIFICATIONS; TO AMEND SECTION 13-5-23, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JURORS CAN ONLY BE EXCUSED FROM SERVICE FOR ILLNESS OR UNDUE HARDSHIP; TO CODIFY SECTION 13-5-24, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JURORS CAN POSTPONE JURY SERVICE ONE TIME ONLY; TO AMEND SECTION 13-5-25, MISSISSIPPI CODE OF 1972, TO LIMIT THE FREQUENCY OF JURY SERVICE; TO AMEND SECTION 13-5-28, MISSISSIPPI CODE OF 1972, TO REQUIRE NOTICE OF JURY SERVICE EXEMPTION ENTITLEMENT TO BE INCLUDED IN JUROR SUMMONSES; TO AMEND SECTION 13-5-34, MISSISSIPPI CODE OF 1972, TO REVISE THE PUNISHMENT FOR FAILURE TO APPEAR FOR JURY SERVICE; TO CODIFY SECTION 13-5-99, MISSISSIPPI CODE OF 1972, TO PROVIDE EMPLOYMENT PROTECTIONS FOR JURORS; TO AMEND SECTION 25-7-61, MISSISSIPPI CODE OF 1972, TO CREATE A LENGTHY TRIAL FUND; TO AMEND SECTION 33-1-5, MISSISSIPPI CODE OF 1972, TO ELIMINATE CERTAIN JUROR EXEMPTIONS; TO REPEAL SECTIONS 41-17-7 AND 47-5-55, MISSISSIPPI CODE OF 1972, WHICH PROVIDE CERTAIN EXEMPTIONS FROM JURY SERVICE; TO AMEND SECTION 83-48-5, MISSISSIPPI CODE OF 1972, TO EXPAND THE MEDICAL MALPRACTICE INSURANCE AVAILABILITY PLAN THAT IS ADMINISTERED BY THE MISSISSIPPI TORT CLAIMS BOARD TO MAKE AVAILABLE PRIOR ACTS EXTENDED REPORTING PERIOD COVERAGE TO ALL PARTICIPANTS OF THE PLAN AT ADDITIONAL PREMIUM ASSESSMENTS FOR SUCH COVERAGE AND TO PAY ALL MEDICAL MALPRACTICE INSURANCE PREMIUMS FOR CERTAIN RETIRED PHYSICIANS WHO PROVIDE VOLUNTEER UNPAID HEALTH CARE SERVICES; TO AMEND SECTION 11-46-1, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "EMPLOYEE" FOR PURPOSES OF LIMITED LIABILITY UNDER THE TORT CLAIMS BOARD TO INCLUDE THOSE PHYSICIANS WHO PROVIDE HEALTH CARE SERVICES TO MEDICAID RECIPIENTS, STATE AND SCHOOL EMPLOYEES HEALTH INSURANCE PLAN PARTICIPANTS AND CHILDREN'S HEALTH INSURANCE PROGRAM PARTICIPANTS IF AT LEAST THIRTY-FIVE PERCENT OF THE PHYSICIAN'S PATIENTS ARE MEDICAID RECIPIENTS, OR NOT TO EXCEED ONE HUNDRED TWENTY-FIVE PHYSICIANS; TO INCLUDE CERTAIN RETIRED PHYSICIANS WHO PROVIDE VOLUNTEER UNPAID HEALTH CARE SERVICES TO ANY PUBLIC ENTITY OR PRIVATE ENTITY; TO CREATE IN THE STATE TREASURY A SPECIAL FUND TO THE CREDIT OF THE MISSISSIPPI TORT CLAIMS BOARD WHICH SHALL BE COMPRISED OF ANY FUNDS MADE AVAILABLE FOR THE FUND BY THE LEGISLATURE; TO PROVIDE THAT MONIES IN THE SPECIAL FUND SHALL BE EXPENDED BY THE MISSISSIPPI TORT CLAIMS BOARD TO PROVIDE ADDITIONAL FUNDS FOR PRIOR ACT COVERAGE FOR PLAN PARTICIPANTS AND TO PAY THE MEDICAL MALPRACTICE PREMIUMS FOR THOSE RETIRED PHYSICIANS DESCRIBED HEREIN; TO CREATE AN ADVISORY COUNCIL TO ASSIST THE MISSISSIPPI TORT CLAIMS BOARD IN DETERMINING WHETHER A PHYSICIAN MEETS THE PERCENTAGE REQUIREMENT NECESSARY TO QUALIFY AS AN EMPLOYEE FOR LIMITED LIABILITY PURPOSES; TO PROVIDE RATES FOR COPIES OF MEDICAL RECORDS THAT MAY BE CHARGED BY MEDICAL PROVIDERS AND FACILITIES; TO PROVIDE FOR MEDICAL PRACTICE OF DISCLOSURE; TO IMPOSE POWERS AND DUTIES ON THE STATE BOARD OF MEDICAL LICENSURE AND THE STATE DEPARTMENT OF HEALTH; TO PROVIDE FOR PENALTIES; TO AMEND SECTIONS 73-43-11 AND 41-3-15, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO AMEND SECTION 73-25-27, MISSISSIPPI CODE OF 1972, TO PROVIDE THE RIGHT FOR HARMED PATIENTS TO ATTEND DISCIPLINARY PROCEEDINGS INVOLVING THE PHYSICIAN RESPONSIBLE FOR THE HARM; TO REQUIRE INSURANCE COMPANIES WRITING MEDICAL MALPRACTICE INSURANCE IN THE STATE TO ROLL BACK PREMIUM RATES TO THE AMOUNT CHARGED ON JULY 1, 2001; TO REQUIRE STATEWIDE PUBLICATION OF RECALL NOTICES; TO PROVIDE FOR A DIRECT ACTION AGAINST AN INSURER; TO PROVIDE THAT POLICY SHALL CONTAIN PROVISIONS THAT INSOLVENCY OR BANKRUPTCY OF THE INSURED SHALL NOT RELEASE THE INSURER FROM LIABILITY; TO PROVIDE THAT ACTIONS MAY BE BROUGHT AGAINST THE INSURER ALONE IN CERTAIN SITUATIONS; TO PROVIDE THAT THE INSURANCE POLICY SHALL BE ADMISSIBLE INTO EVIDENCE; 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) (a) (i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.

(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

(2) In any civil action where more than one (1) plaintiff is joined, each plaintiff shall independently establish proper venue; it is not sufficient that venue is proper for any other plaintiff joined in the civil action.

SECTION 2. (1) One or more members of a class may sue or be sued as representative parties on behalf of all only if (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law or fact common to the class, (c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (d) the representative parties will fairly and adequately protect the interests of the class.

(2) An action may be maintained as a class action if the prerequisites of subsection (1) are satisfied, and in addition:

(a) The prosecution of separate actions by or against individual members of the class would create a risk of:

(i) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(ii) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(b) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(c) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (i) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (iv) the difficulties likely to be encountered in the management of a class action.

(3) (a) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.

(b) In any class action maintained under subsection (2)(c), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (i) the court will exclude the member from the class if the member so requests by a specified date; (ii) the judgment, whether favorable or not, will include all members who do not request exclusion; and (iii) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.

(c) The judgment in an action maintained as a class action under subsection (2)(a) or (2)(b), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subsection (2)(c), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subsection (3)(b) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(d) When appropriate (i) an action may be brought or maintained as a class action with respect to particular issues, or (ii) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(4) (a) When a person sues or is sued as a representative of a class, the court must, at an early practicable time, determine by order whether to certify the action as a class action.

(b) An order certifying a class action must define the class and the class claims, issues or defenses and must appoint class counsel under subsection (9).

(d) (i) For any class certified under this section or the court may direct appropriate notice to the class.

(ii) For any class certified under this section, the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language:

1. The nature of the action;

2. The definition of the class certified;

3. The class claims, issues or defenses;

4. That a class member may enter an appearance through counsel if the member so desires;

5. That the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and

6. The binding effect of a class judgment on class members under this section.

(e) The judgment in an action maintained as a class action under subsection (3)(a) or (3)(b), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subsection (3)(c), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subsection (4)(b) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(f) When appropriate (i) an action may be brought or maintained as a class action with respect to particular issues, or (ii) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(5) In the conduct of actions to which this rule applies, the court may make appropriate orders:

(a) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(b) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

(d) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;

(e) Dealing with similar procedural matters. The orders may be combined and may be altered or amended as may be desirable from time to time.

(6) A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

(7) (a) (i) The court must approve any settlement, voluntary dismissal or compromise of the claims, issues or defenses of a certified class.

(ii) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal or compromise.

(iii) The court may approve a settlement, voluntary dismissal or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal or compromise is fair, reasonable and adequate.

(b) The parties seeking approval of a settlement, voluntary dismissal or compromise must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal or compromise.

(c) In an action previously certified as a class action, the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

(d) (i) Any class member may object to a proposed settlement, voluntary dismissal or compromise that requires court approval.

(ii) An objection made under this subsection may be withdrawn only with the court's approval.

(8) A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten (10) days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so order.

(9) (a) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.

(b) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.

(i) Must consider:

1. The work counsel has done in identifying or investigating potential claims in the action;

2. Counsel's experience in handling class actions, other complex litigation and claims of the type asserted in the action;

3. Counsel's knowledge of the applicable law; and

4. The resources counsel will commit to representing the class;

(ii) May consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(iii) May direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and

(iv) May make further orders in connection with the appointment.

(d) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action.

(e) The court may appoint one or more individual attorneys or one or more law firms as class counsel which the court determines is best able to represent the interests of the class.

(f) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs.

(10) In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows:

(a) A claim for an award of attorney fees and nontaxable costs must be made by motion, subject to the provisions of this subsection, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(b) A class member, or a party from whom payment is sought, may object to the motion.

(d) The court may refer issues related to the amount of the award to a special master or to a magistrate judge.

SECTION 3. Section 11-1-66, Mississippi Code of 1972, is amended as follows:

11-1-66. (1) No owner, occupant, lessee or managing agent of property shall be civilly liable for the criminal acts of a third party, unless such owner, occupant, lessee or managing agent knew or, with the exercise of reasonable care, should have known of the risk of criminal conduct on such property and the failure to exercise reasonable care to deter such foreseeable conduct is a proximate cause of damages to an individual or entity.

(2) No owner, occupant, lessee or managing agent of property shall be liable for the death or injury of an independent contractor or the independent contractor's employees resulting from dangers of which the contractor knew or reasonably should have known.

SECTION 4. 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 otherwise provided in subsection (4) 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.

* * *

(3) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.

(4) 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.

(5) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.

* * *

(6) 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 5. Section 13-5-1, Mississippi Code of 1972, is amended as follows:

13-5-1. Every citizen not under the age of twenty-one (21) years, who is either a qualified elector, or a resident freeholder of the county for more than one (1) year, is able to read and write, and has not been convicted of a felony within the past ten (10) years is a competent juror. * * * The lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict. Moreover, * * * no juror shall serve on any jury who has served as such for the last preceding two (2) years. No juror * * * who has a case of his own pending in that court shall serve in his own case.

In order to determine that prospective jurors can read and write, the presiding judge shall, with the assistance of the clerk, distribute to the jury panel a form to be completed personally by each juror prior to being empaneled as follows:

"1. Your name ________ Last ________ First ________ Middle initial

2. Your home address ________

3. Your occupation ________

4. Your age ________

5. Your telephone number ________ If none, write 'None'

6. If you live outside the county seat, the number of miles you live from the courthouse ________ miles

__________________

Sign your name"

The judge shall personally examine the answers of each juror prior to empaneling the jury and each juror who cannot complete the above form shall be disqualified as a juror and discharged.

A list of any jurors disqualified for jury duty by reason of inability to complete the form shall be kept by the circuit clerk and their names shall not be placed in the jury box thereafter until such person can qualify as above provided.

SECTION 6. Section 13-5-23, Mississippi Code of 1972, is amended as follows:

13-5-23. (1) All qualified persons shall be liable to serve as jurors, unless excused by the court for one (1) of the following causes:

(a) When the juror is ill and, on account of the illness, is incapable of performing jury service; or

(b) When the juror's attendance would cause undue or extreme physical or financial hardship to the prospective juror or a person under his or her care or supervision.

* * *

(2) An excuse of illness under subsection (1)(a) of this section may be made to the clerk of court outside of open court by providing the clerk with * * * a certificate of a licensed physician * * *, stating that the juror is ill and is unfit for jury service, in which case the clerk may excuse the juror. If the excuse of illness is not supported by a physician's certificate, a judge of the court for which the individual was called to jury service shall decide whether to excuse an individual under subsection (1)(a) of this section.

(3) (a) The test of an excuse under subsection (1)(b) of this section for undue or extreme physical or financial hardship shall be whether the individual would either:

(i) Be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver during the period of participation in the jury pool or on the jury; or

(ii) Incur costs that would have a substantial adverse impact on the payment of the individual's necessary daily living expenses or on those for whom he or she provides the principal means of support; or

(iii) Suffer physical hardship that would result in illness or disease.

(b) "Undue or extreme physical or financial hardship" does not exist solely based on the fact that a prospective juror will be required to be absent from his or her place of employment or business.

(c) A judge of the court for which the individual was called to jury service shall decide whether to excuse an individual under subsection (1)(b) of this section.

(d) A person asking to be excused based on a finding of undue or extreme physical or financial hardship must take all actions necessary to have obtained a ruling on that request by no later than the date on which the individual is scheduled to appear for jury duty.

(e) A person asking a judge to grant an excuse under subsection (1)(b) of this section shall be required to provide the judge with documentation such as, but not limited to, federal and state income tax returns or other information which verifies income, medical statements from licensed physicians, proof of dependency or guardianship and similar documents, which the judge finds to clearly support the request to be excused. Failure to provide satisfactory documentation shall result in a denial of the request to be excused. Any documentation produced under this paragraph shall not be a public record.

(4) After two (2) years, a person excused from jury service shall become eligible once again for qualification as a juror unless the person was excused from service permanently. A person is excused from jury service permanently only when the deciding judge determines that the underlying grounds for being excused are of a permanent nature.

(5) * * * A tales juror * * * shall not be compelled to serve two (2) days successively unless the case in which the juror is impaneled continues longer than one (1) day. Grand jurors shall serve until discharged by the court.

SECTION 7. The following provision shall be codified as Section 13-5-24, Mississippi Code of 1972:

13-5-24. (1) Notwithstanding any other provisions of this chapter, individuals scheduled to appear for jury service have the right to postpone the date of their initial appearance for jury service one (1) time only. Postponements shall be granted upon request, provided that:

(a) The juror has not been granted a postponement within the past two (2) years;

(b) The prospective juror appears in person or contacts the clerk of the court by telephone, electronic mail or in writing to request a postponement; and

(c) Prior to the grant of a postponement with the concurrence of the clerk of the court, the prospective juror fixes a date certain to appear for jury service that is within the next two (2) terms of court but not more than twelve (12) months after the date on which the prospective juror originally was called to serve and on which date the court will be in session.

(2) A subsequent request to postpone jury service may be approved by a judicial officer only in the event of an extreme emergency, such as a death in the family, sudden illness, or a natural disaster or a national emergency in which the prospective juror is personally involved, that could not have been anticipated at the time the initial postponement was granted. Prior to the grant of a second postponement, the prospective juror must fix a date certain on which the individual will appear for jury service within twelve (12) months of the postponement on a date when the court will be in session.

SECTION 8. Section 13-5-25, Mississippi Code of 1972, is amended as follows:

13-5-25. Every citizen over sixty-five (65) years of age, and everyone who has served on the regular panel as a juror in the actual trial of one or more litigated cases within two (2) years, shall be exempt from service if he claims the privilege * * *. No qualified juror shall be excluded because of any such reasons, but the same shall be a personal privilege to be claimed by any person selected for jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.

Provided, however, that no person who has served on the regular panel as a juror in the actual trial of one or more litigated cases in one (1) court may claim the exemption in any other court where he may be called to serve.

SECTION 9. Section 13-5-28, Mississippi Code of 1972, is amended as follows:

13-5-28. If a grand, petit or other jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be served with a summons, either personally or by mail, addressed to him at his usual residence, business or post office address, requiring him to report for jury service at a specified time and place. The summons shall include instructions to the potential jurors that explain, in layman's terms, the provisions of Sections 13-5-23 and 13-5-99.

SECTION 10. Section 13-5-34, Mississippi Code of 1972, is amended as follows:

13-5-34. (1) A person summoned for jury service who fails to appear or to complete jury service as directed, and who has failed to obtain a postponement in compliance with the provisions for requesting a postponement, or who fails to appear on the date set pursuant to Section 13-5-24 shall be ordered by the court to appear forthwith and show cause for his failure to comply with the summons. If he fails to show good cause for noncompliance with the summons he is in civil contempt of court and * * * may be fined not more than Five Hundred Dollars ($500.00) or imprisoned not more than three (3) days, or both. The prospective juror may be excused from paying sanctions for good cause shown or in the interest of justice.

(2) In addition to, or in lieu of, the fine or imprisonment provided in subsection (1) of this section, the court may order that the prospective juror complete a period of community service for a period no less than if the prospective juror would have completed jury service, and provide proof of completion of this community service to the court.

SECTION 11. The following provision shall be codified as Section 13-5-99, Mississippi Code of 1972:

13-5-99. (1) It shall be unlawful for any employer or any other person to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee notifies his or her employer that he or she has been summoned to serve as a juror within a reasonable period of time after receipt of a summons.

(2) It shall be unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process, or time spent actually serving on a jury. Nothing in this provision shall be construed to require an employer to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such benefits under company policies.

(3) Any violation of subsection (1) or (2) of this section shall be deemed an interference with the administration of justice and a contempt of court and punishable as such.

(4) A court shall automatically postpone and reschedule the service of a summoned juror employed by an employer with five (5) or fewer full-time employees, or their equivalent, if another employee of that employer has previously been summoned to appear during the same period. Such postponement will not constitute the excused individual's right to one (1) automatic postponement under Section 13-5-24.

SECTION 12. Section 25-7-61, Mississippi Code of 1972, is amended as follows:

25-7-61. (1) Fees of jurors shall be payable as follows:

(a) Grand jurors and petit jurors in the chancery, county, circuit and special eminent domain courts shall be paid an amount to be set by the board of supervisors, not to be less than Twenty-five Dollars ($25.00) per day and not to be greater than Forty Dollars ($40.00) per day, plus mileage authorized in Section 25-3-41. In the trial of all cases where jurors are in charge of bailiffs and are not permitted to separate, the sheriff with the approval of the trial judge may pay for room and board of jurors on panel for actual time of trial.

No grand juror shall receive any compensation except mileage unless he shall have been sworn as provided by Section 13-5-45; and no petit juror except those jurors called on special venires shall receive any compensation authorized under this subsection except mileage unless he shall have been sworn as provided by Section 13-5-71.

(b) Jurors making inquisitions of idiocy, lunacy or of unsound mind and jurors on coroner's inquest shall be paid Five Dollars ($5.00) per day plus mileage authorized in Section 25-3-41 by the county treasurer on order of the board of supervisors on certificate of the clerk of the chancery court in which such inquisition is held.

(c) Jurors in the justice courts shall be paid an amount of not less than Ten Dollars ($10.00) per day and not more than Fifteen Dollars ($15.00) per day, to be established by the board of supervisors. In all criminal cases in the justice court wherein the prosecution fails, the fees of jurors shall be paid by the county treasurer on order of the board of supervisors on certificate of the county attorney in all counties that have county attorneys, otherwise by the justice court judge.

(2) Any juror may return the fees provided as compensation for service as a juror to the county which paid for such person's service as a juror. The fees returned to the county may be earmarked for a particular purpose to be selected by the juror, including:

(a) The local public library;

(b) Local law enforcement;

(d) Any other governmental agency.

(3) The Administrative Office of Courts shall promulgate rules to establish a Lengthy Trial Fund to be used to provide full or partial wage replacement or wage supplementation to jurors who serve as petit jurors in civil cases for more than ten (10) days.

(a) The court rules shall provide for the following:

(i) The selection and appointment of an administrator for the fund.

(ii) Procedures for the administration of the fund, including payments of salaries of the administrator and other necessary personnel.

(iii) Procedures for the accounting, auditing and investment of money in the Lengthy Trial Fund.

(iv) A report by the Administrative Office of Courts on the administration of the Lengthy Trial Fund in its annual report on the judicial branch, setting forth the money collected for and disbursed from the fund.

(b) The administrator shall use any monies deposited in the Lengthy Trial Fund to pay full or partial wage replacement or supplementation to jurors whose employers pay less than full regular wages when the period of jury service lasts more than ten (10) days.

(c) The court may pay replacement or supplemental wages of up to Three Hundred Dollars ($300.00) per day per juror beginning on the eleventh day of jury service. In addition, for any jurors who qualify for payment by virtue of having served on a jury for more than ten (10) days, the court, upon finding that such service posed a significant financial hardship to a juror, even in light of payments made with respect to jury service after the tenth day, may award replacement or supplemental wages of up to One Hundred Dollars ($100.00) per day from the fourth to the tenth day of jury service.

(d) Any juror who is serving or has served on a jury that qualifies for payment from the Lengthy Trial Fund, provided the service commenced on or after the July 1, 2004, may submit a request for payment from the Lengthy Trial Fund on a form that the administrator provides. Payment shall be limited to the difference between the state-paid jury fee and the actual amount of wages a juror earns, up to the maximum level payable, minus any amount the juror actually receives from the employer during the same time period.

(i) The form shall disclose the juror's regular wages, the amount the employer will pay during the term of jury service starting on the eleventh day and thereafter, the amount of replacement or supplemental wages requested, and any other information the administrator deems necessary for proper payment.

(ii) The juror also shall be required to submit verification from the employer as to the wage information provided to the administrator, for example, the employee's most recent earnings statement or similar document, prior to initiation of payment from the fund.

(iii) If an individual is self-employed or receives compensation other than wages, the individual may provide a sworn affidavit attesting to his or her approximate gross weekly income, together with such other information as the administrator may require, in order to verify weekly income.

SECTION 13. Section 33-1-5, Mississippi Code of 1972, is amended as follows:

33-1-5. Any member of the Mississippi National Guard on active duty shall be exempt from jury duty upon presenting a current written statement from his superior officer that such jury service will be likely to interfere with his military duties.

SECTION 14. Section 41-17-7, Mississippi Code of 1972, which provides for the exemption from jury service of state insane hospital personnel, is repealed.

SECTION 15. Section 47-5-55, Mississippi Code of 1972, which provides for the exemption from jury service of state correctional system employees and officers, is repealed.

SECTION 16. The Legislature recognizes the importance of assuring adequate health care services for all Mississippians, and it acknowledges that physicians are a vital component of providing such services. The Legislature finds that because of the makeup of the citizenry of the state and the percentage of citizens who are (a) Medicaid recipients, (b) State and School Employees Health Insurance Plan participants and (c) Children's Health Insurance Program participants, physicians who provide health care services to such individuals are providing an essential public service and that it is in the public interest to provide funding to further address medical malpractice insurance needs of these physicians.

SECTION 17. Section 83-48-5, Mississippi Code of 1972, is amended as follows:

83-48-5. (1) There is created the Medical Malpractice Insurance Availability Plan that shall be funded by the participants in the plan. The plan shall be administered by the Tort Claims Board created under Section 11-46-18.

(2) (a) The plan shall provide coverage for medical malpractice to hospitals, institutions for the aged or infirm, or other health care facilities licensed by the State of Mississippi, 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. Participation in the plan shall be voluntary for any hospital, institution for the aged or infirm, or other health care facilities licensed by the State of Mississippi, physicians, nurses and any other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi. However, no state entity may participate in the plan. The term "state" as used in this subsection has the meaning ascribed to that term under Section 11-46-1. The plan shall make available tail (extended reporting period) coverage for participants of the plan at an additional premium assessment for such coverage. The plan shall make available prior acts extended reporting period coverage (retroactive to the inception date of the physician's last medical malpractice policy) for participants of the plan at an additional premium assessment for such coverage. The board shall encourage participation in the insurance industry market. Any duly licensed qualified Mississippi agent who writes a policy under the plan may receive a commission not to exceed five percent (5%) of the premium assessment as full compensation.

(b) The limits of coverage under the plan shall be as follows:

(i) For participants who are "political subdivisions" and participants who are "employees" of political subdivisions, as such terms are defined under Section 11-46-1, a maximum of Five Hundred Thousand Dollars ($500,000.00), per single occurrence, and Two Million Dollars ($2,000,000.00), in the aggregate, per year, for all occurrences;

(ii) For all other participants, a maximum of One Million Dollars ($1,000,000.00), per single occurrence, and Three Million Dollars ($3,000,000.00), in the aggregate, per year, for all occurrences; and

(iii) For tail coverage, the plan shall provide the same limits of coverage as designated in subparagraphs (i) and (ii) of this paragraph (b).

(iv) For prior acts extended reporting period coverage, the plan shall provide the same limits of coverage as designated in subparagraphs (i) and (ii) of this paragraph (b). For the purpose of providing funds, in addition to assessments, for prior acts extending reporting period coverage, the Mississippi Tort Claims Board shall use monies in the special fund created under Section 19 of House Bill No. ____, First Extraordinary Session of 2004.

(3) Policies may be underwritten based on participant history. All rates applicable to the coverage provided herein shall be on an actuarially sound basis and calculated to be self-supporting. Policies for prior acts extended reporting period coverage shall be underwritten at the lowest premium rates possible on an actuarially sound basis.

(4) Every participant in the plan shall:

(a) File with the board a written agreement, the form and substance of which shall be determined by the board, signed by a duly authorized representative of the participant, that the participant will provide services to (i) Medicaid recipients, (ii) State and School Employees Health Insurance Plan participants, and (iii) Children's Health Insurance Program participants. The agreement must provide, among other things, that the participant will provide services to Medicaid recipients, State and School Employees Health Insurance Plan participants, and Children's 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; and

(b) Pay all assessments and premiums established by the board.

(5) This chapter shall not preclude any hospital, institution for the aged or infirm, or other health care facilities licensed by the State of Mississippi, 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 any source other than the plan.

(6) Notwithstanding any other provision of this section to the contrary, the Mississippi Tort Claims Board shall use so much of the monies in the special fund created in Section 19 of House Bill No. ____, First Extraordinary Session of 2004, as may be necessary to pay all medical malpractice insurance premiums for not more than an aggregate of twenty-five (25) physicians described in Section 11-46-1(f)(ii).

(7) The Tort Claims Board shall have the following powers and duties:

(a) To expend money from a loan 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;

(b) To approve and pay claims of participants;

(d) To contract with accountants, attorneys, actuaries and any other experts deemed necessary to carry out the responsibilities under the plan. The outsourcing of any function of the board shall be provided by Mississippi residents or Mississippi domicile corporations, if available;

(e) To employ not more than five (5) persons in time-limited positions to assist the board in the administration of the plan;

(f) To contract for administration of the claims and service of the plan to a third party. The outsourcing of any function of the board shall be provided by Mississippi residents or Mississippi domicile corporations, if available;

(g) To use monies in the special fund created under Section 19 of House Bill No. ____, First Extraordinary Session of 2004, for the purposes provided in subsections (2)(b)(iv) and (6) of this section.

(h) To adopt and promulgate rules and regulations to implement the provisions of the plan. The Tort Claims Board shall adopt such rules and regulations as may be necessary to ensure that the plan remains actuarially sound. The board shall retain the limited liability established by Section 11-46-15; and

(i) To submit an annual report on or before March 1 each year to the House and Senate Insurance Committees. Such report shall contain:

(i) Certification by a qualified actuary that the plan is solvent;

(ii) The number of participants in the plan;

(iii) The number of claims filed and paid by the plan; and

(iv) The amount of all assessments and fees collected from the participants in the plan.

(8) Nothing contained in this section shall be construed as repealing, amending or superseding the provisions of any other law and, if the provisions of this section conflict with any other law, then the provisions of such other law shall govern and control to the extent of the conflict.

SECTION 18. 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.

(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:

(i) 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 health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites. The term "employee" shall also include any physician, dentist or other health care practitioner employed by any university under the control of the Board of Trustees of State Institutions of Higher Learning who practices only 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 health care practitioner employed by the State Veterans Affairs Board and who provides health care services for patients for 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. For the purposes of the limits of liability provided for in Section 11-46-15 and for no other purpose under this chapter, the term "employee" also shall include any physician who provides health care services to Medicaid recipients, State and School Employees Health Insurance Plan participants and Children's Health Insurance Program participants, provided that at least thirty-five percent (35%) of the physician's patients, as determined by the board, are Medicaid recipients, however, not to exceed one hundred twenty-five (125) physicians; and

(ii) Any retired physician who provides volunteer unpaid health care services to any public entity or private entity. For the purposes of this subparagraph (ii), "public entity" means any agency, department, institution, instrumentality or political subdivision of the state, or any agency, department, institution or instrumentality of any political subdivision of the state; and "private entity" means any business, organization, corporation, association or other legal entity which is not a public entity.

(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 19. There is created in the State Treasury a special fund to the credit of the Mississippi Tort Claims Board, which shall be comprised of any funds that may be made available for the fund by the Legislature. Monies in the fund shall be expended by the Mississippi Tort Claims Board, upon appropriation by the Legislature, only for the purpose of providing additional funds for prior acts extended reporting period coverage as provided in Section 83-48-5 and for paying the medical malpractice premiums for those physicians described in Section 11-46-1(f)(ii) as provided for in Section 83-48-5. Unexpended amounts remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned or investment earnings on amounts in the special fund shall be deposited to the credit of the special fund.

SECTION 20. The Tort Claims Board shall develop methods and promulgate rules and regulations to verify whether a physician meets the percentage requirement under Section 11-46-1(f) to qualify as an employee. There is created an advisory council to assist the Mississippi Tort Claims Board in determining whether a physician meets the percentage requirement under Section 11-46-1(f) to qualify as an employee. The advisory council shall be composed of the Executive Director of the Mississippi Medical Association or his designee; the President of the Mississippi Medical and Surgical Association or his designee; the administrator of the Mississippi Tort Claims Board or his designee; two (2) physicians appointed by the Lieutenant Governor; two (2) physicians appointed by the Speaker of the House of Representatives and three (3) nonphysician members, one (1) from each Supreme Court district, appointed by the Governor.

SECTION 21. That any medical provider or hospital or nursing home or other medical facility shall charge no more than the following amounts to patients or their representatives for photocopying any patient's records: Twenty Dollars ($20.00) for pages one (1) through twenty (20); One Dollar ($1.00) per page for the next eighty (80) pages; Fifty Cents (50¢) per page for all pages thereafter. Ten percent (10%) of the total charge may be added for postage and handling. Fifteen Dollars ($15.00) may be recovered by the medical provider or hospital or nursing home or other medical facility for retrieving medical records in archives at a location off the premises where the facility/office is located.

SECTION 22. Short title.

Sections 22 through 31 of this act shall be known and may be cited as the Medical Practice Disclosure Act.

SECTION 23. Legislative intent.

The State of Mississippi hereby recognizes the necessity of allowing individuals to make informed and educated choices regarding health care services and the essential need to provide information to facilitate these important decisions. It further recognizes that public disclosure of certain health care information would lower the cost of health care through the use of the most appropriate provider and improve the quality of health care services by mandating the reporting of information regarding health care providers.

It is the intention of the Legislature to establish a procedure by which the general public may obtain essential and basic information concerning potential health care providers, while ensuring the accuracy and disclosure of all relevant information that would enable individuals to informatively select their health care provider.

SECTION 24. Collection of information.

(1) The State Board of Medical Licensure (board) and the State Department of Health (department) shall collect for each physician licensed or otherwise practicing medicine in the State of Mississippi the following information, in a format developed by the department that shall be available for dissemination to the public:

(a) A description of any criminal convictions for felonies and violent misdemeanors as determined by the department. For the purposes of this paragraph, a person shall be deemed to be convicted of a crime if that person pleaded guilty or if that person was found or adjudged guilty by a court of competent jurisdiction.

(b) A description of any charges to which a physician pleads nolo contendere or where sufficient facts of guilt were found and the matter was continued without a finding by a court of competent jurisdiction.

(d) A description of any final disciplinary actions by licensing boards in other states or reported in the National Practitioner Data Bank.

(e) A description of revocation or involuntary restriction of hospital privileges that have been taken by a hospital's governing body and any other official of a hospital after procedural due process has been afforded, or the resignation from or nonrenewal of medical staff membership or the restriction of privileges at a hospital taken in lieu of or in settlement of a pending disciplinary case.

(f) Notwithstanding any law to the contrary, all medical malpractice court judgments and all medical malpractice arbitration awards in which a payment is awarded to a complaining party and all settlements of medical malpractice claims in which a payment is made to a complaining party. Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.

(g) All civil court awards or settlements arising from allegations of sexual misconduct filed by patients, employees or hospital staff.

(h) A paragraph describing the malpractice experience of each medical specialty and an explanation that some high risk specialties experience more malpractice claims than less risky specialties. This information shall be updated on an annual basis to reflect the most recent malpractice claims experience of each specialty.

(i) Names of medical schools and dates of graduation.

(j) Graduate medical education.

(k) Specialty board certification(s).

(l) Number of years in practice.

(m) Name of hospitals where the physician has privileges.

(n) Appointments to medical school faculties and indication as to whether the physician has a responsibility for graduate medical education.

(o) Information regarding publications in peer-reviewed medical literature.

(p) Information regarding professional or community service activities and awards.

(q) The location of the physician's primary practice location.

(r) The indication of any translating services that may be available at the physician's primary practice location.

(s) An indication of whether the physician participates in the Medicaid program.

(2) The department shall provide each physician with a copy of that physician's profile prior to the release to the public.

(3) A physician shall be provided a reasonable time, not to exceed sixty (60) days, to correct factual inaccuracies or omissions that may appear in the profile.

(4) (a) A physician may petition the board for permission to temporarily omit certain information for a period not to exceed one (1) year.

(b) If the physician demonstrates to the board that disclosure of the information would represent an undue risk of injury to the physician or the property of the physician, the board may grant the request and the information shall be withheld until such time as the situation is resolved, based on the presentation of evidence to the board, for a period not to exceed one (1) year.

(5) The board or the department shall not disclose any pending malpractice claims to the public, and nothing in this section shall be construed to prohibit the board or the department from investigating and disciplining a physician on the basis of pending medical malpractice claim information obtained under this act.

SECTION 25. Report of criminal convictions and pleas of nolo contendere.

(1) The clerk of any court in which a physician is convicted of any crime or in which any unregistered practitioner is convicted of holding himself out as a practitioner of medicine or of practicing medicine shall, within one (1) week thereafter, report the same to the State Medical Licensure Board, together with a copy of the court proceedings in the case.

(2) For the purposes of this section, a person shall be deemed to be convicted of a crime if he pleaded guilty or was found or adjudged guilty by a court of competent jurisdiction.

(3) Upon review, the State Board of Medical Licensure shall provide the information to the department for purposes consistent with this act.

(4) If a physician pleads nolo contendere to charges or where sufficient facts of guilt were found and the matter was continued without a finding by a court of competent jurisdiction, the clerk shall, within one (1) week thereafter, report the same to the Medical Licensure Board, together with a copy of the court proceedings in the case. Upon review, the Medical Licensure Board shall provide the information to the department for purposes consistent with this act.

SECTION 26. Reports to hospitals and health care facilities.

(1) Each licensed hospital or health care facility shall report to the board and the department if the hospital or facility denies, restricts, revokes or fails to renew staff privileges or accepts the resignation of a physician for any reason related to the physician's competence to practice medicine or for any other reason related to a complaint or allegation regarding any violation of law, regulation, rule or bylaw of the hospital or facility regardless of whether the complaint or allegation specifically states a violation of a specific law, regulation, rule or bylaw. The report shall be filed within thirty (30) days of the occurrence of the reportable action and include details regarding the nature and circumstances of the action, its date and the reasons for it.

(2) Each licensed hospital or health care facility shall file an annual disciplinary report with the board no later than January 31 and shall send the report by certified or registered mail. The report shall summarize the action reports submitted for the previous calendar year and shall be signed under oath. If the hospital or facility submitted no action reports for the previous calendar year, then the report required by this subsection shall state that no action reports were required.

(3) No hospital, health care facility or person reporting information to the board or the department under this section shall be liable to the physician referenced in the report for making the report, provided that the report is made in good faith and without malice.

SECTION 27. Reports of disciplinary action by professional medical organizations.

(1) A professional medical association, society, body, professional standards review organization or similarly constituted professional organization, whether or not such association, society, body or organization is local, regional, state, national or international in scope, shall report to the Medical Licensure Board the disciplinary action taken against any physician. Such report of disciplinary action shall be filed with the board within thirty (30) days of such disciplinary action, shall be in writing and shall be mailed to the board by certified or registered mail.

(2) As used in this section, the term "disciplinary action" includes, but is not limited to, revocation, suspension, censure, reprimand, restriction, nonrenewal, denial or restriction of privileges or a resignation shall be reported only when the resignation or the denial or restriction of privileges is related in any way to:

(a) The physician's competence to practice medicine; or

(b) A complaint or allegation regarding any violation of law or regulation, including, but not limited to, the regulations of the department or the Medical Licensure Board or hospital, health care facility or professional medical association bylaws, whether or not the complaint or allegation specifically cites violation of a specified law, regulation or by law.

SECTION 28. Reports by insurers of malpractice claims or actions.

(1) Every insurer or risk management organization which provides professional liability insurance to a physician shall report to the department any claim or action for damages for personal injuries alleged to have been caused by error, omission or negligence in the performance of the physician's professional services where the claim resulted in:

(a) Final judgment in any amount;

(b) Settlement in any amount; or

(2) Reports shall be filed with the board no later than thirty (30) days following the occurrence of any event listed under this section.

(3) The reports shall be in writing on a form prescribed by the department and shall contain the following information.

(a) The name, address, specialty coverage and policy number of the physician against whom the claim is made.

(b) The name, address and age of the claimant or plaintiff.

(d) The date when and place where the claim arose.

(e) The amounts paid, if any, and the date, manner of disposition, judgment and settlement.

(f) The date and reason for final disposition, if no judgment or settlement.

(g) Such additional information as the department shall require. No insurer or its agents or employees shall be liable in any cause of action arising from reporting to the department as required in this section.

SECTION 29. Reports by physicians of settlements or arbitration awards.

(1) A physician who does not possess professional liability insurance shall report to the department every settlement or arbitration award of a claim or action for damages for death or personal injury caused by negligence, error or omission in practice, or the unauthorized rendering of professional services by the physician. The report shall be made within thirty (30) days after the settlement agreement has been reduced to writing or thirty (30) days after service of the arbitration award on the parties as long as it is signed by all the parties.

(2) (a) Except as otherwise provided in this section, a physician who fails to comply with the provisions of this section shall be subject to a civil penalty of not more than Five Hundred Dollars ($500.00).

(b) A physician who makes a knowing or intentional failure to comply with the provisions of this section, or conspires or colludes not to comply with the provisions of this section, or hinders or impedes any other person in such compliance, shall be subject to a civil penalty of not less than Five Thousand Dollars ($5,000.00) nor more than Fifty Thousand Dollars ($50,000.00).

SECTION 30. Public access to information.

(l) Effective July 1, 2004, a fee of not more than Twenty Dollars ($20.00) shall be assessed to all physicians, and the fee shall be collected by the department every two (2) years to offset the costs associated with this act.

(2) The department shall make available to the public, upon request by any person or entity and upon payment of a reasonable copy charge not to exceed One Dollar ($1.00) per page, the information compiled by the board in Section 24 of this act.

(3) Each physician shall make available to the public, free of charge, information compiled by the board in Section 24 of this act. All physicians shall conspicuously post at their primary place of practice a notice stating, "free background information available upon request."

(4) The department shall disseminate information of Section 24 of this act by posting the information on the state's website on the Internet. The fees collected under subsection (1) may be used to pay for the expenses of complying with this subsection.

SECTION 31. Rules and regulations.

The board and the department shall in the manner provided by law promulgate the rules and regulations necessary to carry out the provisions of this act, including, but not limited to, the exchange of information between the board and the department and other relevant state agencies, insurance carriers, hospitals and judicial administrative offices.

SECTION 32. Section 73-43-11, Mississippi Code of 1972, is amended as follows:

73-43-11. The State Board of Medical Licensure shall have the following powers and responsibilities:

(a) Setting policies and professional standards regarding the medical practice of physicians, osteopaths, podiatrists and physician assistants practicing with physician supervision;

(b) Considering applications for licensure;

(d) Investigating alleged violations of the medical practice act;

(e) Conducting hearings on disciplinary matters involving violations of state and federal law, probation, suspension and revocation of licenses;

(f) Considering petitions for termination of probationary and suspension periods, and restoration of revoked licenses;

(g) To promulgate and publish reasonable rules and regulations necessary to enable it to discharge its functions and to enforce the provisions of law regulating the practice of medicine;

(h) To enter into contracts with any other state or federal agency, or with any private person, organization or group capable of contracting, if it finds such action to be in the public interest and in the furtherance of its responsibilities; * * *

(i) Perform the duties prescribed by Sections 73-26-1 through 73-26-5; and

(j) Perform the duties prescribed by the Medical Practice Disclosure Act.

SECTION 33. Section 41-3-15, Mississippi Code of 1972, is amended as follows:

41-3-15. (1) There shall be a State Department of Health which shall be organized into such bureaus and divisions as are considered necessary by the executive officer, and shall be assigned appropriate functions as are required of the State Board of Health by law, subject to the approval of the board.

(2) The State Board of Health shall have the authority to establish an Office of Rural Health within the department. The duties and responsibilities of this office shall include the following:

(a) To collect and evaluate data on rural health conditions and needs;

(b) To engage in policy analysis, policy development and economic impact studies with regard to rural health issues;

(c) To develop and implement plans and provide technical assistance to enable community health systems to respond to various changes in their circumstances;

(d) To plan and assist in professional recruitment and retention of medical professionals and assistants; and

(e) To establish information clearinghouses to improve access to and sharing of rural health care information.

(3) The State Board of Health shall have general supervision of the health interests of the people of the state and to exercise the rights, powers and duties of those acts which it is authorized by law to enforce.

(4) The State Board of Health shall have authority:

(a) To make investigations and inquiries with respect to the causes of disease and death, and to investigate the effect of environment, including conditions of employment and other conditions which may affect health, and to make such other investigations as it may deem necessary for the preservation and improvement of health.

(b) To make such sanitary investigations as it may, from time to time, deem necessary for the protection and improvement of health and to investigate nuisance questions which affect the security of life and health within the state.

(c) To direct and control sanitary and quarantine measures for dealing with all diseases within the state possible to suppress same and prevent their spread.

(d) To obtain, collect and preserve such information relative to mortality, morbidity, disease and health as may be useful in the discharge of its duties or may contribute to the prevention of disease or the promotion of health in this state.

(e) To enter into contracts or agreements with any other state or federal agency, or with any private person, organization or group capable of contracting, if it finds such action to be in the public interest.

(f) To charge and collect reasonable fees for health services, including immunizations, inspections and related activities, and the board shall charge fees for such services; provided, however, if it is determined that a person receiving services is unable to pay the total fee, the board shall collect any amount such person is able to pay.

(g) To accept gifts, trusts, bequests, grants, endowments or transfers of property of any kind.

(h) To receive monies coming to it by way of fees for services or by appropriations.

(i) (i) To establish standards for, issue permits and exercise control over, any cafes, restaurants, food or drink stands, sandwich manufacturing establishments, and all other establishments, other than churches, church-related and private schools, and other nonprofit or charitable organizations, where food or drink is regularly prepared, handled and served for pay; and

(ii) To require that a permit be obtained from the Department of Health before such persons begin operation.

(j) To promulgate rules and regulations and exercise control over the production and sale of milk pursuant to the provisions of Sections 75-31-41 through 75-31-49.

(k) On presentation of proper authority, to enter into and inspect any public place or building where the State Health Officer or his representative deems it necessary and proper to enter for the discovery and suppression of disease and for the enforcement of any health or sanitary laws and regulations in the state.

(l) To conduct investigations, inquiries and hearings, and to issue subpoenas for the attendance of witnesses and the production of books and records at any hearing when authorized and required by statute to be conducted by the State Health Officer or the State Board of Health.

(m) To employ, subject to the regulations of the State Personnel Board, qualified professional personnel in the subject matter or fields of each bureau, and such other technical and clerical staff as may be required for the operation of the department. The executive officer shall be the appointing authority for the department, and shall have the power to delegate the authority to appoint or dismiss employees to appropriate subordinates, subject to the rules and regulations of the State Personnel Board.

(n) To promulgate rules and regulations, and to collect data and information, on (i) the delivery of services through the practice of telemedicine; and (ii) the use of electronic records for the delivery of telemedicine services.

(o) To enforce and regulate domestic and imported fish as authorized under Section 69-7-601 et seq.

(5) (a) The State Board of Health shall have the authority, in its discretion, to establish programs to promote the public health, to be administered by the State Department of Health. Specifically, such programs may include, but shall not be limited to, programs in the following areas:

(i) Maternal and child health;

(ii) Family planning;

(iii) Pediatric services;

(iv) Services to crippled and disabled children;

(v) Control of communicable and noncommunicable disease;

(vi) Child care licensure;

(vii) Radiological health;

(viii) Dental health;

(ix) Milk sanitation;

(x) Occupational safety and health;

(xi) Food, vector control and general sanitation;

(xii) Protection of drinking water;

(xiii) Sanitation in food handling establishments open to the public;

(xiv) Registration of births and deaths and other vital events;

(xv) Such public health programs and services as may be assigned to the State Board of Health by the Legislature or by executive order; and

(xvi) Regulation of domestic and imported fish for human consumption.

(b) The State Board of Health and State Department of Health shall not be authorized to sell, transfer, alienate or otherwise dispose of any of the home health agencies owned and operated by the department on January 1, 1995, and shall not be authorized to sell, transfer, assign, alienate or otherwise dispose of the license of any of those home health agencies, except upon the specific authorization of the Legislature by an amendment to this section. However, this paragraph (b) shall not prevent the board or the department from closing or terminating the operation of any home health agency owned and operated by the department, or closing or terminating any office, branch office or clinic of any such home health agency, or otherwise discontinuing the providing of home health services through any such home health agency, office, branch office or clinic, if the board first demonstrates that there are other providers of home health services in the area being served by the department's home health agency, office, branch office or clinic that will be able to provide adequate home health services to the residents of the area if the department's home health agency, office, branch office or clinic is closed or otherwise discontinues the providing of home health services. This demonstration by the board that there are other providers of adequate home health services in the area shall be spread at length upon the minutes of the board at a regular or special meeting of the board at least thirty (30) days before a home health agency, office, branch office or clinic is proposed to be closed or otherwise discontinue the providing of home health services.

(c) The State Department of Health may undertake such technical programs and activities as may be required for the support and operation of such programs, including maintaining physical, chemical, bacteriological and radiological laboratories, and may make such diagnostic tests for diseases and tests for the evaluation of health hazards as may be deemed necessary for the protection of the people of the state.

(6) (a) The State Board of Health shall administer the local governments and rural water systems improvements loan program in accordance with the provisions of Section 41-3-16.

(b) The State Board of Health shall have authority:

(i) To enter into capitalization grant agreements with the United States Environmental Protection Agency, or any successor agency thereto;

(ii) To accept capitalization grant awards made under the federal Safe Drinking Water Act, as amended;

(iii) To provide annual reports and audits to the United States Environmental Protection Agency, as may be required by federal capitalization grant agreements; and

(iv) To establish and collect fees to defray the reasonable costs of administering the revolving fund or emergency fund if the State Board of Health determines that such costs will exceed the limitations established in the federal Safe Drinking Water Act, as amended. The administration fees may be included in loan amounts to loan recipients for the purpose of facilitating payment to the board; however, such fees may not exceed five percent (5%) of the loan amount.

(7) The State Board of Health and the State Department of Health shall perform those duties prescribed in the Medical Practice Disclosure Act.

SECTION 34. Section 73-25-27, Mississippi Code of 1972, is amended as follows:

73-25-27. The Mississippi State Board of Medical Licensure after notice and opportunity for a hearing to the licentiate, is authorized to suspend or revoke for any cause named herein any license it has issued, or the renewal thereof, that authorizes any person to practice medicine, osteopathy, or any other method of preventing, diagnosing, relieving, caring for, or treating, or curing disease, injury or other bodily condition. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

Such notice shall be effected by registered mail or personal service setting forth the particular reasons for the proposed action and fixing a date not less than thirty (30) days or more than sixty (60) days from the date of such mailing or such service, at which time the licentiate shall be given an opportunity for a prompt and fair hearing. For the purpose of such hearing the board, acting by and through its executive office, may subpoena persons and papers on its own behalf and on behalf of licentiate, including records obtained pursuant to Section 73-25-28, may administer oaths and such testimony when properly transcribed, together with such papers and exhibits, shall be admissible in evidence for or against the licentiate. At such hearing licentiate may appear by counsel and personally in his own behalf. Any person sworn and examined as a witness in such hearing shall not be held to answer criminally, nor shall any papers or documents produced by such witness be competent evidence in any criminal proceedings against such witness other than for perjury in delivering his evidence. Any patient or a representative of the patient who has suffered harm by a physician subject to a hearing under this section shall have the right to attend all proceedings regarding such physician. Notice shall be provided to the patient or his representative at the same time and in the same manner as the notice is made to the physician. On the basis of any such hearing, or upon default of the licentiate, the Board of Medical Licensure shall make a determination specifying its findings of fact and conclusions of law.

A copy of such determination shall be sent by registered mail or served personally upon the licentiate. The decision of the Board of Medical Licensure revoking or suspending the license shall become final thirty (30) days after so mailed or served unless within said period the licentiate appeals the decision to the chancery court, pursuant to the provisions hereof, and the proceedings in chancery shall be conducted as other matters coming before the court. All proceedings and evidence, together with exhibits, presented at such hearing before the Board of Medical Licensure in the event of appeal shall be admissible in evidence in said court.

The Board of Medical Licensure may subpoena persons and papers on its own behalf and on behalf of the respondent, including records obtained pursuant to Section 73-25-28, may administer oaths, and may compel the testimony of witnesses. It may issue commissions to take testimony, and testimony so taken and sworn to shall be admissible in evidence for and against the respondent. The Board of Medical Licensure shall be entitled to the assistance of the chancery court or the chancellor in vacation, which, on petition by the board, shall issue ancillary subpoenas and petitions and may punish as for contempt of court in the event of noncompliance therewith.

Unless the court otherwise decrees, a license that has been suspended by the Board of Medical Licensure for a stated period of time shall automatically become valid on the expiration of that period and a license that has been suspended for an indefinite period shall become again valid if and when the Board of Medical Licensure so orders, which it may do on its own motion or on the petition of the respondent. A license that has been revoked shall not be restored to validity except: (1) after a rehearing by the Board of Medical Licensure, on petition of the respondent, for good cause shown, filed within ten (10) days, immediately following the service on him of the order or judgment of the Board of Medical Licensure revoking his license or (2) by order of the court, on petition as aforesaid. Any licentiate whose license becomes again valid after a period of suspension or after it has been restored to validity after a rehearing or by an order of the court, shall record it again in the office of the clerk of the circuit court of the county in which he resides in conformity with the requirements of Section 73-25-13. Nothing in this chapter shall be construed as limiting or revoking the authority of any court or of any licensing or registering officer or board, other than the State Board of Medical Licensure, to suspend, revoke and reinstate licenses and to cancel registrations under the provisions of Section 41-29-311.

SECTION 35. All insurance companies writing medical malpractice insurance in the State of Mississippi shall roll back premium rates to the amount charged on July 1, 2001, unless such roll back shall result in an increase in premium rates. The Commissioner of Insurance shall enforce compliance with the provisions of this section. Any insurance company who violates the provisions of this section shall, upon conviction, be fined Fifty Thousand Dollars ($50,000.00) for each violation.

SECTION 36. Any product sold or distributed in Mississippi by any manufacturer or distributor licensed to do business or doing business in Mississippi shall publish statewide notice of any recall of any product or its component parts within thirty (30) days of the recall. Any manufacturer or distributor who fails to provide notice of a recall as required by this section shall, upon conviction, be fined Fifty Thousand Dollars ($50,000.00) for each violation. The Attorney General shall enforce compliance with the provisions of this section.

SECTION 37. (1) No policy or contract of liability insurance shall be issued or delivered in this state unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy. Any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person or his or her survivors or heirs against the insurer.

(2) (a) The injured person or his or her survivors or heirs mentioned in subsection (1) of this section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the county in which the accident or injury occurred or in the county in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by the Rules of Civil Procedure only. However, such action may be brought against the insurer alone only when:

(i) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;

(ii) The insured is insolvent;

(iii) Service of citation or other process cannot be made on the insured;

(iv) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons; or

(v) When the insurer is an uninsured motorist carrier.

(b) This right of direct action shall exist whether or not the policy of insurance sued upon was written or delivered in the State of Mississippi and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Mississippi. Nothing contained in this section shall be construed to affect the provisions of the policy or contract if such provisions are not in violation of the laws of this state.

(3) The policy or contract of liability insurance shall be admissible into evidence in any proceeding regarding such policy or contract of liability insurance.

(4) It is the intent of this section that any action brought under the provisions of this section shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this state.

(5) It is also the intent of this section that all liability policies within their terms and limits are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insureds or additional insureds under the omnibus clause, for any legal liability such insured may have as or for a tort-feasor within the terms and limits of such policy.

SECTION 38. If any provision of this act is held by a court to be invalid, such invalidity shall not affect the remaining provisions of this act, and to this end the provisions of this act are declared severable.

SECTION 39. This act shall take effect and be in force from and after July 1, 2004, and Sections 1 through 4 of this act shall apply to all causes of action filed on or after that date.