MISSISSIPPI LEGISLATURE

2004 1st Extraordinary Session

To: Judiciary A

By: Representative Blackmon, Simpson, Compretta, Smith (39th), Franks, Watson, Moak

House Bill 12

AN ACT TO AMEND SECTION 11-11-3, MISSISSIPPI CODE OF 1972, TO REVISE THE VENUE IN GENERAL CIVIL ACTIONS; TO AMEND SECTION 11-1-60, MISSISSIPPI CODE OF 1972, TO REVISE CAPS ON NONECONOMIC DAMAGES; TO BRING FORWARD SECTIONS 11-1-63 AND 11-1-64, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT RELATED TO INNOCENT SELLER REVISIONS; TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO REVISE PUNITIVE DAMAGES; 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 BRING FORWARD SECTIONS 13-5-23, 13-5-25, 13-5-28, 13-5-34, 25-7-61 AND 33-1-5, MISSISSIPPI CODE OF 1972, REGARDING SELECTION OF JURORS FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 83-48-5, MISSISSIPPI CODE OF 1972, TO EXPAND THE MEDICAL MALPRACTICE AVAILABILITY PLAN THAT IS ADMINISTERED BY THE TORT CLAIMS BOARD FOR PRIOR ACTS COVERAGE PURPOSES; 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 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 PROVIDE FOR A WAIVER OF THE MEDICAL PRIVILEGE IN CERTAIN CASES; TO REQUIRE STATEWIDE PUBLICATION OF RECALL NOTICES; TO ALLOW BENCH TRIALS IN CERTAIN CASES IF THE PARTIES AGREE; 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 AMEND SECTION 11-46-19, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; 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. Section 11-1-60, Mississippi Code of 1972, is amended as follows:

11-1-60. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Noneconomic damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term "noneconomic damages" shall not include * * * punitive or exemplary damages.

(b) "Actual economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.

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(2) (a) In any cause of action filed on or after July 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than the following for noneconomic damages:

(i) For claims for causes of action filed on or after passage of Chapter 2, Third Extraordinary Session 2002, but before July 1, 2011, the sum of Five Hundred Thousand Dollars ($500,000.00);

(ii) For claims for causes of action filed on or after July 1, 2011, but before July 1, 2017, the sum of Seven Hundred Fifty Thousand Dollars ($750,000.00);

(iii) For claims for causes of action filed on or after July 1, 2017, the sum of One Million Dollars ($1,000,000.00).

(b) In any civil action filed on or after January 1, 2005, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Four Million Dollars ($4,000,000.00) for noneconomic damages.

* * *

It is the intent of this section to limit all noneconomic damages to the above.

(c) The trier of fact shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.

(3) The limitation on noneconomic damages set forth in subsection (2) shall not apply in cases where the judge determines that a jury may impose punitive damages.

(4) Nothing in this section shall be construed to impose a limitation on damages for disfigurement, blindness, third degree burns, loss of reproductive capabilities or actual economic damages.

(5) Nothing contained in subsection (1) of this section shall be construed as creating a cause of action or as setting forth elements of or types of damages that are or are not recoverable in any type of cause of action.

(6) The Department of Finance and Administration shall annually adjust the caps in this section for inflation.

SECTION 3. Section 11-1-63, Mississippi Code of 1972, is brought forward as follows:

11-1-63. Subject to the provisions of Section 11-1-64, in any action for damages caused by a product except for commercial damage to the product itself:

(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:

(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or

2. The product was defective because it failed to contain adequate warnings or instructions, or

3. The product was designed in a defective manner, or

4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and

(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and

(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.

(c) (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a)(i)2 of this section, the manufacturer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller, the manufacturer or seller knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.

(ii) An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.

(d) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer or seller shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.

(e) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer or seller shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.

(f) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:

(i) The manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and

(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.

(g) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.

(ii) Subparagraph (i) shall not apply unless the seller has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller.

(h) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.

SECTION 4. Section 11-1-64, Mississippi Code of 1972, is brought forward as follows:

11-1-64. (1) A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section.

(2) This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom recovery may be had for plaintiff's claim.

(3) A defendant may move for dismissal under this section within one hundred eighty (180) days from the date an answer or other responsive pleading is due to be filed or at such later time as may be permitted by the court for good cause shown. The motion shall be accompanied by an affidavit which shall be made under oath and shall state that the defendant is aware of no facts or circumstances upon which a verdict might be reached against him, other than his status as a seller in the stream of commerce.

(4) The parties shall have sixty (60) days in which to conduct discovery on the issues raised in the motion and affidavit. The court for good cause shown, may extend the time for discovery, and may enter a protective order pursuant to the rules of civil procedure regarding the scope of discovery on other issues.

(5) Any party may move for a hearing on a motion to dismiss under this section. If the requirements of subsections (2) and (3) of this section are met, and no party comes forward at such a hearing with evidence of facts which would render the defendant seeking dismissal under this section liable on some basis other than his status as a seller in the stream of commerce, the court shall dismiss without prejudice the claim as to that defendant.

(6) No order of dismissal under this section shall operate to divest a court of venue or jurisdiction otherwise proper at the time the action was commenced. A defendant dismissed pursuant to this section shall be considered to remain a party to such action only for such purposes.

(7) An order of dismissal under this section shall be interlocutory until final disposition of plaintiff's claim.

SECTION 5. Section 11-1-65, Mississippi Code of 1972, is amended as follows:

11-1-65. (1) In any action in which punitive damages are sought:

(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.

(b) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.

(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing * * * to determine whether punitive damages may be considered by the same trier of fact.

(d) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount.

(e) In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.

(f) (i) Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.

(ii) In determining whether the award is excessive, the court shall take into consideration the following factors:

1. Whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred;

2. The degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct;

3. The financial condition and net worth of the defendant; and

4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct. (2) The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same * * *.

(3) (a) In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the following:

(i) Twenty Million Dollars ($20,000,000.00) for a defendant with a net worth of more than One Billion Dollars ($1,000,000,000.00);

(ii) Fifteen Million Dollars ($15,000,000.00) for a defendant with a net worth of more than Seven Hundred Fifty Million Dollars ($750,000,000.00) but not more than One Billion Dollars ($1,000,000,000.00);

(iii) Five Million Dollars ($5,000,000.00) for a defendant with a net worth of more than Five Hundred Million Dollars ($500,000,000.00) but not more than Seven Hundred Fifty Million Dollars ($750,000,000.00);

(iv) Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) for a defendant with a net worth of more than One Hundred Million Dollars ($100,000,000.00) but not more than Five Hundred Million Dollars ($500,000,000.00);

(v) Two Million Five Hundred Thousand Dollars ($2,500,000.00) for a defendant with a net worth of more than Fifty Million Dollars ($50,000,000.00) but not more than One Hundred Million Dollars ($100,000,000.00); or

(vi) Two percent (2%) of the defendant's net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.

(b) For the purposes of determining the defendant's net worth in paragraph (a), the amount of the net worth shall be determined in accordance with Generally Accepted Accounting Principles.

(c) The limitation on the amount of punitive damages imposed by this subsection (3) shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict.

(d) The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant:

(i) If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or

(ii) While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription.

(e) The exceptions provided in paragraph (d) shall not apply to an employer of a person acting outside the scope of such person's employment or responsibility as an agent or employee.

(4) Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.

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SECTION 6. 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 7. 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.

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(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.

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(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 8. Section 13-5-23, Mississippi Code of 1972, is brought forward as follows:

13-5-23. 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, or when on account of serious illness in the juror's family, the presence of the juror is required at home,

(b) When the juror's attendance would cause a serious financial loss to the juror or to the juror's business, or

An excuse of illness under clause (a) may be made to the clerk of court outside of open court by providing the clerk with either a certificate of a licensed physician or an affidavit of the juror, stating that the juror is ill or that there is a serious illness in the juror's family. The test of an excuse under clause (b) shall be whether, if the juror were incapacitated by illness or otherwise for a week, some other persons would be available or could reasonably be procured to carry on the business for the week, and the test of an excuse under clause (c) shall be such as to be the fair equivalent, under the circumstances of that prescribed under clause (b). In cases under clauses (b) and (c) the excuse must be made by the juror, in open court, under oath.

It shall be unlawful for any employer or other person to persuade or attempt to persuade any juror to avoid jury service, or to intimidate or to threaten any juror in that respect. So to do shall be deemed an interference with the administration of justice and a contempt of court and punishable as such.

But a tales juror, save when drawn and retained for the week, 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 9. Section 13-5-25, Mississippi Code of 1972, is brought forward 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; but the latter class shall serve as talesmen, and on special venire, and on the regular panel, if there be a deficiency of jurors. 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 10. Section 13-5-28, Mississippi Code of 1972, is brought forward 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.

SECTION 11. Section 13-5-34, Mississippi Code of 1972, is brought forward as follows:

13-5-34. A person summoned for jury service who fails to appear or to complete jury service as directed 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 guilty of criminal contempt and upon conviction may be fined not more than One Hundred Dollars ($100.00) or imprisoned not more than three (3) days, or both.

SECTION 12. Section 25-7-61, Mississippi Code of 1972, is brought forward 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.

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

33-1-5. Any member of the Mississippi National Guard 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. 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 15. 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 17 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 17 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 17 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 16. 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 17. 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 18. 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 19. (1) 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.

(2) A physician shall only charge normal, reasonable and customary charges for a deposition related to a patient that the physician is treating or has treated.

SECTION 20. 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 any crucial proceedings conducted by the Board of Medical Licensure for disciplinary purposes regarding such physician as to that patient's treatment. 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 21. In any medical malpractice action with multiple defendants, the medical privilege shall be considered waived by and between all defendants.

SECTION 22. 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 23. If the parties to a cause of action agree, any claim filed alleging damages may receive a bench trial which shall be conducted in two hundred seventy (270) days or less after the cause of action has been filed. The cause of action shall be a priority item in the court.

SECTION 24. 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

(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 25. 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;

(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 24 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:]