H 3465 General Bill, By Davenport, Battle, Kirsh, Leach, Littlejohn and 
G.R. Smith

Similar(H 3339)
 A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 32
 TO TITLE 15 SO AS TO ESTABLISH A CAP ON THE AWARD FOR NONECONOMIC COMPENSATORY
 DAMAGES IN MEDICAL MALPRACTICE ACTIONS, TO AUTHORIZE THE PERIODIC PAYMENT OF
 FUTURE DAMAGES IN LIEU OF A LUMP-SUM PAYMENT, AND TO ESTABLISH MAXIMUM LIMITS
 FOR ATTORNEY'S FEES THAT ARE TO BE PAID ON A CONTINGENCY FEE; AND TO ESTABLISH
 THE MEDICAL CLAIMS REVIEW OFFICE WITHIN THE DEPARTMENT OF INSURANCE TO REVIEW
 CLAIMS FOR DAMAGES ALLEGEDLY RESULTING FROM MEDICAL MALPRACTICE AND TO
 ESTABLISH THE POWERS, DUTIES, AND PROCEDURES OF THIS OFFICE AND OF MEDICAL
 CLAIMS REVIEW PANELS; AND TO REQUIRE A REVIEW OF A CLAIM FOR SUCH DAMAGES BY A
 PANEL OF THE MEDICAL CLAIMS REVIEW OFFICE AS A PREREQUISITE TO FILING A
 LAWSUIT.

   02/03/05  House  Introduced and read first time HJ-17
   02/03/05  House  Referred to Committee on Judiciary HJ-17

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 32 TO TITLE 15 SO AS TO ESTABLISH A CAP ON THE AWARD FOR NONECONOMIC COMPENSATORY DAMAGES IN MEDICAL MALPRACTICE ACTIONS, TO AUTHORIZE THE PERIODIC PAYMENT OF FUTURE DAMAGES IN LIEU OF A LUMP-SUM PAYMENT, AND TO ESTABLISH MAXIMUM LIMITS FOR ATTORNEY'S FEES THAT ARE TO BE PAID ON A CONTINGENCY FEE; AND TO ESTABLISH THE MEDICAL CLAIMS REVIEW OFFICE WITHIN THE DEPARTMENT OF INSURANCE TO REVIEW CLAIMS FOR DAMAGES ALLEGEDLY RESULTING FROM MEDICAL MALPRACTICE AND TO ESTABLISH THE POWERS, DUTIES, AND PROCEDURES OF THIS OFFICE AND OF MEDICAL CLAIMS REVIEW PANELS; AND TO REQUIRE A REVIEW OF A CLAIM FOR SUCH DAMAGES BY A PANEL OF THE MEDICAL CLAIMS REVIEW OFFICE AS A PREREQUISITE TO FILING A LAWSUIT.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Title 15 of the 1976 Code is amended by adding:

Section 15-32-10.    (A)    In a medical malpractice action against a health care provider, the plaintiff is entitled to recover noneconomic damages. The amount of noneconomic damages must not exceed two hundred fifty thousand dollars per plaintiff.

(B)    As used in this section, 'noneconomic damages' means damages to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary, compensatory damage. 'Noneconomic damages' does not include punitive damages.

Section 15-32-20.    (A)    In any medical malpractice action against a health care provider, the court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment when the award equals or exceeds fifty thousand dollars in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments that will compensate the judgment creditor for future damages. As a condition to authorizing periodic payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to ensure full payment of damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of any remaining security to the judgment debtor.

(B)    The judgment ordering the payment of future damages by periodic payments shall specify the recipient of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments must be made. The judgment ordering the payment of future damages by periodic payments is subject to modification only in the event of the death of the judgment creditor.

(C)    In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in Subsection (B), the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make the periodic payments, including court costs and attorney's fees.

(D)    Money damages awarded for loss of future earnings must not be reduced or payments terminated by reason of the death of the judgment creditor, but must be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to the judgment creditor's death. The court that rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subsection.

(E)    Following the occurrence or expiration of all obligations specified in the judgment ordering the payment of future damages by periodic payments, any obligation of the judgment debtor to make further payments ceases, and any security given under subsection (A).

(F)    As used in this section:

(1)    'Future damages' includes compensatory damages for future medical treatment, care, or custody; loss of future earnings; loss of bodily function in the future; or future pain and suffering of the judgment creditor.

(2)    'Periodic payments' means the payment of money or delivery of other property to the judgment creditor at regular intervals.

Section 15-32-30.    (A)    An attorney must not contract for or collect a contingency fee for representing any person seeking damages in connection with a medical malpractice action against a health care provider in excess of the following limits:

(1)    Twenty-five percent of the first fifty thousand dollars recovered;

(2)    Ten percent of the next fifty thousand dollars recovered;

(3)    Five percent of the next five hundred thousand dollars recovered;

(4)    Three percent of any amount for which the recovery exceeds six hundred thousand dollars.

(B)    The limits under subsection (A) section apply regardless of whether the recovery is by settlement, arbitration, or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.

(C)    As used in this section, 'amount recovered' means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Amount recovered includes any punitive damages awarded. Costs of medical care incurred by the plaintiff and the attorney's office-overhead costs or charges are not deductible disbursements or costs for purposes of this section.

Section 15-32-200.    There is established the Medical Claims Review Office in the Department of Insurance which shall review all claims against healthcare providers for damages allegedly resulting from medical malpractice.

Section 15-32-210.    (A)(1)    Except as provided for in Section 15-32-250, before an individual may file an action in a court in this State against a healthcare provider for damages allegedly resulting from medical malpractice:

(a)    the individual shall have served a claim for damages on the healthcare provider;

(b)    a medical claims review panel must have reviewed and rendered an opinion on the claim within one hundred twenty days of service of the claim on the healthcare provider;

(c)    sixty days must have elapsed since the claimant was served with the opinion of the medical claims review panel.

(2)    If a claimant files an action against a healthcare provider before the requirements of subsection (A)(1) have been met, the court shall dismiss the action without prejudice, unless the applicable statute of limitations has elapsed. The claimant may not refile the action until the provisions of this chapter have been satisfied.

(B)    The claim for damages must be served on the healthcare provider by certified mail, return receipt requested at the healthcare provider's primary place of practice or upon the healthcare provider's registered agent. The claim must describe the loss suffered, the circumstances that brought about the loss, the extent of the loss, the time and place the loss occurred, and the names and addresses of all persons involved, if known, and the amount of the loss sustained. Submitting a claim for damages constitutes a release authorizing the Medical Claims Review Office and the healthcare provider's medical malpractice insurance carrier to obtain the claimant's medical and hospital records only for the limited purposes provided for in this chapter.

(C)    The service of the claim on the healthcare provider pursuant to subsection (B) tolls the statute of limitations which remains tolled one hundred and eighty days from the date service was effected on the healthcare provider or sixty days after the Medical Claims Review Office has served a final opinion on the claimant, whichever occurs first.

(D)(1)    Within twenty days of receiving a claim for damages, the healthcare provider must serve the claim on the Medical Claims Review Office and on the healthcare provider's medical malpractice insurance carrier by certified mail, return receipt requested.

(2)    Within thirty days of receiving a claim for damages, the healthcare provider shall serve a response to the claim on the Medical Claims Review Office, the healthcare provider's medical malpractice insurance carrier, and the claimant by certified mail, return receipt requested.

(3)    A healthcare provider who fails to comply with subsection (D)(1) or (D)(2) is, after notice and an opportunity to be heard, subject to a fine of not less than five thousand dollars or more than ten thousand dollars to be imposed by the Medical Claims Review Office.

Section 15-32-220.    (A)    Following receipt of a claim for damages, the Medical Claims Review Office shall convene a panel to review the claim. A panel must consist of:

(1)    two healthcare professionals, recommended by the South Carolina Medical Association, having expertise in the area of medicine that is the basis of the claim;

(2)    two attorneys, recommended by the South Carolina Bar Association, having expertise in the area of medical malpractice claims;

(3)    two business owners with nonmedical and nonlegal backgrounds recommended by the South Carolina Chamber of Commerce;

(4)    the director of the Department of Insurance or a designee;

(5)    two members of the public having at least an associate's degree.

The office, in conjunction with the South Carolina Medical Association, the South Carolina Bar Association, and the South Carolina Chamber of Commerce, shall develop procedures whereby individuals can register to volunteer to serve on medical claims review panels. The office shall develop medical claims review guidelines and training materials, which must be provided to all individuals who register.

(B)    Within twenty days of receiving a claim for damages from a healthcare provider, the Medical Claims Review Office shall appoint a panel comprised in accordance with subsection (A).

(C)    Members of the medical review panels may receive compensation for serving on a panel, including mileage, per diem, and subsistence, as determined by the Medical Claims Review Office.

Section 15-32-230.    The Medical Claims Review Office shall staff each panel and before providing claimant medical records and other information to the panel members for review, the office shall remove all claimant and healthcare provider identifying information.

Section 15-32-240.    (A)    In reviewing the claim for damages, the review panel shall consider the claim for damages statement submitted, the healthcare provider's response, and all medical records and other information related to the claim. The panel may obtain additional information by submitting questions and requests for information to the claimant and the healthcare provider in accordance with procedures developed by the Medical Claims Review Office, and if necessary, the director of the claims review office may compel responses to such inquiries and may subpoena records and documents only for the limited purposes provided for in this chapter.

(B)    The panel shall render its opinion in writing and the Medical Claims Review Office shall serve the claimant with the opinion by certified mail, return receipt requested, within one hundred twenty days from the date the claim for damages was served on the healthcare provider pursuant to Section 15-32-210(B).

(C)    The panel shall determine whether the claim has merit or does not have merit and if meritorious, whether the conduct complained of resulted in harm to the claimant. If the panel finds that the conduct complained of resulted in harm to the claimant, the panel also shall include in its opinion:

(1)    whether the healthcare provider has assumed any responsibility for the conduct complained of and whether anyone has been disciplined as a result of the conduct, and in multiple healthcare provider claims, the assignment and degree of responsibility if the healthcare providers have not assumed all or part of the responsibility;

(2)    whether the healthcare provider has been available and responsive to the claimant; if the healthcare provider has not provided an adequate explanation to the claimant of what occurred, the panel must provide an explanation and the reason the healthcare provider did not provide an explanation;

(3)    whether any standards of care, processes, or procedures involved in this claim have been revised, or are proposed to be revised, by the healthcare provider in an effort to prevent future occurrences, including enhanced or remedial training, and if no revisions have been made or are proposed to be made, recommendations, if any, for such revisions;

(4)    whether any compensation has been offered and if so, what type of compensation was offered; whether the panel recommends compensation and if so, what type of compensation is recommended; for purposes of this item, 'type of compensation' includes, but is not limited to, future medical expenses, economic damages, pain and suffering, and other noneconomic damages; however, no specific monetary amounts for such damages may be recommended.

(D)    All members of the panel shall sign the opinion and have the right to attach a separate concurring opinion or a dissenting opinion. The Medical Claims Review Office shall serve the panel's opinion by certified mail, return receipt requested on the claimant, the named healthcare provider, the healthcare provider's insurance carrier, and the licensing board or licensing entity for the healthcare provider. If multiple healthcare providers are combined for review, the office shall remove any identifying information not related to the recipient of the opinion before serving the opinion pursuant to this subsection.

(E)    There is no review or appeal of the panel's opinion.

Section 15-32-250.    Notwithstanding the provisions of Section 15-32-210(A), if the panel convened by the Medical Claims Review Office does not serve its opinion on the claimant by registered mail, return receipt requested within one hundred twenty days from the date the claim for damages was served on the healthcare provider pursuant to Section 15-32-210(B) and the parties have not agreed in writing to an extension, the panel has no further jurisdiction over the matter, and the claimant is considered to have complied with the provisions of this chapter. The claimant is no longer prohibited from filing an action, and the statute of limitations begins to run on the one hundred and twenty-first day.

Section 15-32-260.    Within one hundred and eighty days of a licensing board or licensing entity receiving an opinion from the Medical Claims Review Office pursuant to Section 15-32-240(D), the licensing board or licensing entity shall submit an interim report to the Medical Claims Review Office and to the Department of Insurance stating any action the board or entity has taken in connection with a licensee who was a healthcare provider named in a claim for damages. No later than one year from receipt of the opinion, the board or entity shall submit a final report to the Medical Claims Review Office and to the department stating the final disposition of the matter. Information provided by a licensing board or licensing entity pursuant to this section retains the same manner of confidentiality, if any, assigned to such information by the board or entity.

Section 15-32-270.    (A) The Medical Claims Review Office shall maintain records of all proceedings, including a brief summary of each claim for damages submitted and the opinion of the panel on each claim.

(B)    If the claimant files an action for damages based upon the conduct complained of in the claim for damages, the opinion of the Medical Claims Review Panel must be included in the pre-trial briefs required pursuant to South Carolina Rules of Civil Procedure.

(C)    The proceedings of the review panel and any documents, reports, and opinions of the review panels and of the Medical Claims Review Office are:

(1)    privileged and not subject to discovery and are not admissible as evidence in a medical malpractice action pertaining to this matter;

(2)    not subject to disclosure under the Freedom of Information Act.

Section 15-32-280.    The Medical Claims Review Office and healthcare providers who serve on review panels convened by this office are immune from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of their duties as prescribed by this chapter.

Section 15-32-290.    (A)    Revenue to fund the Medical Claims Review Office must be generated from fees assessed in accordance with this section.

(B)    Annually the Department of Insurance shall determine what percentage of the Medical Claims Review Office budget is attributable to each health care profession based upon the staffing time and resources utilized by each. The department shall calculate the budget amount attributable to each healthcare licensing profession and submit this information annually to the Department of Labor, Licensing and Regulation, which shall direct the licensing board of each profession to assess its licensees the budget amount attributable to that profession."

SECTION    3.    This act takes effect January 1, 2006, and applies to medical malpractice claims filed after December 31, 2005.