MISSISSIPPI LEGISLATURE
2004 1st Extraordinary Session
To: Judiciary A
By: Representative Moak
AN ACT 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 PROVIDE FOR MEDICAL PRACTICE 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 SECTION 73-43-11, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO PROVIDE THAT ALL MALPRACTICE CLAIMS SHALL BE REVIEWED BY A MEDICAL REVIEW PANEL; TO ALLOW PARTIES TO MUTUALLY AGREE TO OPT OUT OF THIS REQUIREMENT; TO ESTABLISH THE MEMBERSHIP OF THE REVIEW PANEL; TO PROVIDE WHAT EVIDENCE MAY BE CONSIDERED BY THE PANEL; TO PROVIDE THE FORM OF THE DECISION; TO PROVIDE FOR PANELIST IMMUNITY AND COMPENSATION; TO PROVIDE THAT THE LOSING PARTY SHALL PAY ATTORNEY FEES TO THE PREVAILING PARTY UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 11-46-19, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO PROVIDE UNIFORMITY FOR CERTAIN MEDICAL FEES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-46-1, Mississippi Code of 1972, is amended as follows:
11-46-1. As used in this chapter the following terms shall have the meanings herein ascribed unless the context otherwise requires:
(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.
(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.
(c) "Board" means the Mississippi Tort Claims Board.
(d) "Department" means the Department of Finance and Administration.
(e) "Director" means the executive director of the department who is also the executive director of the board.
(f) "Employee" means:
(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 2. Short title.
Sections 2 through 11 of this act shall be known and may be cited as the Medical Practice Disclosure Act.
SECTION 3. 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 4. 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.
(c) A description of any final disciplinary actions taken by the State Board of Medical Licensure.
(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 5. 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 6. 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 7. 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 8. 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
(c) Final disposition not resulting in payment on behalf of the insured.
(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.
(c) The nature and substance of the claim.
(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 9. 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 10. 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 26 of this act.
(3) Each physician shall make available to the public, free of charge, information compiled by the board in Section 26 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 26 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 11. 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 12. 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;
(c) Conducting examinations 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 13. Medical review panel.
(1) Claims; statute of limitations.
(a) Definitions. For purposes of this section:
(i) "Board" means the Tort Claims Board established by Section 11-46-18, Mississippi Code of 1972.
(ii) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, institution for the aged or infirm, community blood center, tissue bank, dentist, registered or licensed practical nurse or certified nurse assistant, ambulance service, certified registered nurse anesthetist, nurse-midwife, licensed midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 USC 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the Mississippi Code of 1972, or any partnership, limited liability partnership, limited liability company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.
(iii) "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.
(b) (i) All malpractice claims against health care providers, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel as provided in this section unless all parties specifically waive the use of the medical review panel.
(ii) An action against a health care provider or his insurer commenced in any court shall be presented to a medical review panel and an opinion rendered by the panel pursuant to this section, and the court's request for review shall constitute a stay pending the panel's decision.
(iii) The request for review of a malpractice claim under this section shall be made by the court on its own motion or on the motion of any party.
(c) (i) The request for review must be in writing, delivered to the board in person or by certified or registered United States mail, and include as an exhibit the complaint filed.
(ii) Each defendant shall file a written answer within thirty (30) days of service of the request. If the defendant fails to file an answer as required, the board shall notify the defendant of the obligation to file and penalty for failure to file; notice shall be by certified or registered United States mail. If the defendant has not filed within thirty (30) days of the receipt of the notice specified in this subparagraph (ii), the request for review shall be dismissed; the panel, if formed, shall be dissolved, and the plaintiff shall be allowed to proceed in court upon the complaint filed.
(2) Dismissal of review; dissolution of panel.
(a) During the pendency of proceedings under this section, a health
care provider against whom a claim has been filed may raise any exception or
defenses available pursuant to Mississippi law, whether a procedural, statute
of limitations or other exception or defense, at any time without need for
completion of the review process by the medical review panel.
(b) If the court finds for the party raising the exception or
defense, that party shall be dismissed.
If there are no defendants remaining, the panel, if established, shall
be dissolved.
(3) Composition and selection of panel.
(a) The medical review panel shall consist of two (2) physicians who each hold an unlimited license to practice medicine in Mississippi, one (1) patient advocate appointed by the Tort Claims Board and one (1) attorney who shall be the nonvoting chair of the panel. The parties may agree on the attorney member of the medical review panel within thirty (30) days after the filing of the answer; if no agreement can be reached, then the attorney member of the medical review panel shall be selected as follows:
(i) The board shall draw five (5) names at random from the list of attorneys maintained by the board who have medical malpractice experience. The names of judges, magistrates, district attorneys and assistant district attorneys shall be excluded if drawn and new names drawn in their place. After selection of the attorney names, the board shall notify the parties of the attorney names from which the parties, within five (5) days, may choose the attorney member of the panel. If no agreement can be reached within five (5) days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two (2) names alternately, with the plaintiff striking first and so advising the defendant of the name of the attorney so stricken; thereafter, the defendant and the plaintiff shall alternately strike until both sides have stricken two (2) names and the remaining name shall be the attorney member of the panel. If either the plaintiff or defendant fails to strike, the board shall strike for that party within five (5) additional days.
(ii) After the striking, the board shall notify the attorney and all parties of the name of the selected attorney. An attorney who has a conflict of interest shall decline to serve.
(b) The attorney shall act as chairman of the panel and shall have no vote. The chairman shall preside at panel meetings, advise the panel as to questions of law, and shall prepare the opinion of the panel as required in subsection (7) of this section. It is the duty of the chairman to expedite the selection of the other panel members, to convene the panel and expedite the panel's review of the proposed complaint. The attorney chairman shall establish, by order, a reasonable schedule for submission of evidence to the medical review panel, but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities within one hundred twenty (120) days following selection of the panel.
(c)
The qualification and selection of physician members of the medical
review panel shall be as follows:
(i) All physicians who hold a license to
practice medicine in the State of Mississippi and who are engaged in the active
practice of medicine in this state, whether in the teaching profession or
otherwise, shall be available for selection and, unless excused for cause,
required to serve upon selection.
(ii) Each party to the action shall have the
right to select one (1) physician and upon selection the physician shall be
required to serve.
(iii) When there are multiple plaintiffs or
defendants, there shall be only one (1) physician selected per side. The plaintiff, whether single or multiple,
shall have the right to select one (1) physician, and the defendant, whether
single or multiple, shall have the right to select one (1) physician.
(iv) If any defendant is a physician, the physicians selected must be of the same specialty as at least one (1) physician defendant.
(v) Parties and their attorneys are absolutely prohibited from contact with the physician whose name is submitted, either before or after submission. No physician may be informed of the method of any panel member's selection.
(vi) No physician may be selected to serve on more than four (4) medical review panels in a twelve-month period.
(vii) The physician selection process shall be completed within thirty
(30) days of the selection of the attorney chairman.
(d) Attorneys and physicians with any financial, employment, or
personal or family ties to any party or attorney for a party shall not serve on
a panel. Any conflict that cannot be
resolved shall be decided by the court upon the motion of any party.
(4) Evidence.
(a) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only.
(b) The evidence may consist of:
(i) Medical records;
(ii) Sworn statements;
(iii) Expert reports signed by experts;
(iv) Deposition transcripts;
(v) Any other evidence allowed by the medical review panel or submitted
by the parties.
(c) Depositions of the parties only may be taken, and may be taken
prior to the convening of the panel.
(d) Upon request of any party or panel member, the board shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection, copying or both.
(e) The plaintiff must sign a valid authorization allowing defendants to obtain the plaintiff's medical records. The defendant shall treat all medical records in a confidential manner and shall not disclose the contents of the records to anyone other than the panel or other experts; all other experts must treat the plaintiff's records as confidential.
(f) The board shall send a copy of the evidence to each member of the panel.
(5) Hearings. (a) After submission of all evidence and upon ten (10) days' notice to the other side, either party or the panel shall have the right to convene the panel at a time and place agreeable to the members of the panel; each party is entitled to request only one (1) hearing. The panel may hold as many hearings as it chooses. The purpose of a hearing is to ask questions as to additional evidence needed and to afford an opportunity to make oral presentation of the facts. The chairman of the panel shall preside at all hearings, which shall be informal.
(b) The following are locations where hearings may be held:
(i) At a courthouse or other available public building in the county where the act or omission is alleged to have occurred.
(ii) The attorney chairman shall decide the location in the event of any dispute.
(iii) Private offices in the county where the act or omission is alleged to have occurred may be used if there is no cost or if the parties pay for the cost.
(6)
Panel deliberations and decision.
After receiving all evidence from the parties, the panel shall
convene to discuss the evidence presented not less than one (1) time, and, not
later than sixty (60) days after receiving all evidence from the parties, shall
render a written decision signed by the panelists, together with written
reasons for their conclusions, as follows:
(a) There was a breach of the appropriate standard of care;
(b) There was not a breach of the appropriate standard of care; or
(c) Whether the defendant or defendants failed to comply with the appropriate standard of care cannot be determined.
(7) Form of decision. The decision reached by the medical review panel shall be in writing, shall state the facts upon which it is based, shall be of public record, and shall be admissible as evidence in the civil case filed.
(8) Panelist immunity. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this section.
(9) Panelist compensation.
(a) (i) Each physician member of the medical review panel shall be paid a fee of Five Hundred Dollars ($500.00) for all work performed as a member of the panel, and in addition thereto, per diem as provided in Section 25-3-69, Mississippi Code of 1972, and travel expenses as would be calculated for a state employee pursuant to Section 25-3-41, Mississippi Code of 1972.
(ii) The attorney chairman of the medical review panel shall be paid at the rate of One Hundred Fifty Dollars ($150.00) per hour, not to exceed a total of Three Thousand Dollars ($3,000.00), for all work performed as a member of the panel, and in addition thereto, per diem as provided in Section 25-3-69, Mississippi Code of 1972, and travel expenses as would be calculated for a state employee pursuant to Section 25-3-41, Mississippi Code of 1972.
(b) The costs of the medical review panel shall be split between the parties. The panel members shall by affidavit request the payment due under this subsection (9) from the board, which in turn shall bill the parties for the proportionate share of each party.
(10) Delivery and effect of decision. The chairman shall submit a copy of the panel's report to the board and all parties and attorneys by registered or certified mail within five (5) days after the panel renders its opinion. The panel's report shall be of public record.
SECTION 14. Section 11-46-19, Mississippi Code of 1972, is amended as follows:
[Until July 1, 2005, this section shall read 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 under Section 83-48-5; and
(w) To act as the board as required under House Bill No. ____, 2004 First Extraordinary Session, dealing with medical malpractice claims as follows:
(i) To accept filings under the act;
(ii) To coordinate the selection of panels;
(iii) To maintain lists of attorneys eligible for appointment as attorney chairmen;
(iv) To promulgate rules in reference to the qualifications of attorneys serving as panel members;
(v) To promulgate rules and regulations necessary to implement the provisions of Section 13 of House Bill No. ____, 2004 First Extraordinary Session; and
(vi) To provide general administrative support.
(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.
[From and after July 1, 2005, this section shall read 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; and
(v) To act as the board as required under House Bill No. ____, 2004 First Extraordinary Session, dealing with medical malpractice claims as follows:
(i) To accept filings under the act;
(ii) To coordinate the selection of panels;
(iii) To maintain lists of attorneys eligible for appointment as attorney chairmen;
(iv) To promulgate rules in reference to the qualifications of attorneys serving as panel members;
(v) To promulgate rules and regulations necessary to implement the provisions of Section 13 of House Bill No. ____, 2004 First Extraordinary Session; and
(vi) To provide general administrative support.
(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 15. (1) A physician shall charge all purchasers the lowest fee for health care which the physician has agreed to accept as full payment for the same health care when the same health care is being paid for in whole or in part through any agreement between the physician and any other purchaser. Nothing in this section shall be deemed to limit the physician's right to provide any health care for free.
(2) To assist patients to determine a physician's fees and compliance with this section, a patient shall have access to any fee schedules agreed to by the physician, and any other records of the physician related to the patient's health care which might contain information indicating whether the physician is in compliance with this section. This right of access, whether or not exercised, may not be waived, and may be exercised prior to, during or after the health care is provided. This right of access is not intended to conflict with, supercede or alter any rights or obligations under general law related to the privacy of patient records.
(3) Definitions. As used in this section, the following terms shall have the following meanings:
(a) "Health care" means services, procedures, treatment, accommodations or products provided by a physician described by this section.
(b) "Physician" means one licensed by the Board of Medical Licensure, and any corporation, professional association or similar organization established and operated for the purpose of provided health care by such licensees.
(c) "Purchaser" means patients, third-party payors or others paying for a patient's health care, and does not include a patient receiving care without charge.
(d) "Charge" means require, charge, bill, accept or be entitled to receive as payment for health care.
(e) "Patient" means individual who has sought, is seeking, is receiving, or has received health care from the physician.
(f) "Have access to" means, in addition to any other procedure for producing such records provided by general law, making the records available for review, inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be made available by reference to the location at which the records are publicly available.
SECTION 16. 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 17. This act shall take effect and be in force from and after July 1, 2004.