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H. 3432
STATUS INFORMATION
General Bill
Sponsors: Rep. Davenport
Document Path: l:\council\bills\bbm\9378zw03.doc
Companion/Similar bill(s): 3372
Introduced in the House on January 28, 2003
Currently residing in the House Committee on Judiciary
Summary: Civil lawsuit protection for prescribers of drugs approved by the Federal Food and Drug Administration
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 1/28/2003 House Introduced and read first time HJ-35 1/28/2003 House Referred to Committee on Judiciary HJ-35
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 15-5-47 SO AS TO PROVIDE CIVIL LAWSUIT PROTECTION FOR PHYSICIANS, OPTOMETRISTS, NURSE PRACTITIONERS, AND PHYSICIAN ASSISTANTS WHO PRESCRIBE FDA APPROVED DRUGS; TO AMEND TITLE 15 OF THE 1976 CODE BY ADDING CHAPTERS 32 AND 40 SO AS TO PROVIDE FOR CERTAIN LIMITS ON THE AMOUNT AND TYPES OF DAMAGE AWARDS IN PERSONAL INJURY ACTIONS, TO PROVIDE FOR FINDINGS WHICH MUST BE MADE WITH REGARD TO SUCH DAMAGE AWARDS, TO PROVIDE THAT IN TORT ACTIONS EVIDENCE OF COLLATERAL SOURCE PAYMENTS WHICH HAVE BEEN PAID OR MAY BE DUE THE CLAIMANT MAY BE INTRODUCED IN EVIDENCE, TO PROVIDE THAT THE TRIER OF FACT MUST CONSIDER THE COLLATERAL SOURCE PAYMENTS WHEN DETERMINING THE AMOUNT OF DAMAGES, AND TO PROVIDE THAT THE TRIER OF FACT MUST MAKE CERTAIN FACTUAL FINDINGS WITH REGARD TO ITS DAMAGE AWARD; TO AMEND SECTION 15-7-20, RELATING TO ACTIONS WHICH MUST BE TRIED WHERE THE CAUSE OF ACTION AROSE, SO AS TO REQUIRE THAT AN ACTION AGAINST CERTAIN HEALTH CARE PROFESSIONALS BE BROUGHT IN THE COUNTY WHERE THE ALLEGED ACT OR OMISSION OCCURRED; AND TO AMEND SECTION 15-38-20, RELATING TO THE RIGHT OF CONTRIBUTION, SO AS TO REVISE THE LIMITATION OF JOINT AND SEVERAL LIABILITY FOR DAMAGES CAUSED BY TWO OR MORE MEDICAL DEFENDANTS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 5, Title 15 of the 1976 Code is amended by adding:
"Section 15-5-47. Notwithstanding any other provision of law or rule of civil procedure, a physician, optometrist, nurse practitioner, or physician assistant may not be sued in a civil action alleging damages caused by a prescription drug that has been approved by the federal Food and Drug Administration, unless the plaintiff pleads specific facts which, if proven, amount to negligence on the part of the medical provider. It is the intent of this section to immunize innocent medical providers listed in this section who are not actively negligent from forum-driven lawsuits."
SECTION 2. Title 15 of the 1976 Code is amended by adding:
Section 15-32-10. As used in this chapter, unless the context clearly requires otherwise:
(1) 'Noneconomic damages' means subjective, nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness, or injury.
(2) 'Actual economic damages' means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, 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.
Section 15-32-20. In any personal injury action, the prevailing plaintiff may be awarded:
(1) compensation for actual economic damages suffered by the injured plaintiff; and
(2) compensation for the noneconomic damages suffered by the injured plaintiff not to exceed:
(a) two hundred fifty thousand dollars; or
(b) the amount awarded in economic damages, whichever amount is greater.
Section 15-32-30. (A) If liability is found in a personal injury or wrongful death action, the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:
(1) any past damages; and
(2) any future damages and the periods over which they accrue, on an annual basis, for each of the following types of damages:
(a) medical and other costs of health care;
(b) other economic loss; and
(c) noneconomic loss.
(B) The calculation of all future medical care and other costs of health care and future noneconomic loss must reflect the costs and losses during the period of time the claimant will sustain those costs and losses. The calculation for other economic loss must be based on the losses during the period of time the claimant would have lived but for the injury upon which the claim is based."
SECTION 3. Title 15 of the 1976 Code is amended by adding:
Section 15-40-10. As used in this chapter, unless the context clearly requires otherwise:
(1) 'Collateral source' means a benefit paid or payable to the claimant or on his behalf, under, from, or pursuant to:
(a) the United States Social Security Act;
(b) a state or federal income replacement, disability, workers' compensation, or other act designed to provide partial or full wage or income replacement;
(c) an accident, health or sickness, income or wage replacement insurance, income disability insurance, casualty or property insurance plan including automobile accident and homeowners' insurance benefits, or any other insurance benefits, except life insurance benefits;
(d) a contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services or provide similar benefits; or
(e) a contractual or voluntary wage continuation plan, or payments made pursuant to such a plan, provided by an employer or otherwise, or any other system intended to provide wages during a period of disability.
(2) 'Claimant' means a person who brings a personal injury action. If the action is brought through or on behalf of an estate, the term includes the claimant's decedent. If the action is brought through or on behalf of a minor, the term includes the claimant's parent or guardian.
(3) 'Damage' refers to economic losses paid or payable by collateral sources for wage loss, medical costs, rehabilitation costs, services, and other out-of-pocket costs incurred by or on behalf of a claimant for which the party is claiming recovery through a tort suit.
Section 15-40-20. (A) In all tort actions, regardless of the theory of liability under which they are brought, the court shall allow the admission into evidence of proof of collateral source payments which have already been made or which are substantially certain to be made to the claimant as compensation for the same damages sought in the suit. Proof of these payments must be considered by the trier of fact in arriving at the amount of any award, and must be considered by the court in reviewing awards made for excessiveness.
(B) The trier of fact must be informed of the tax implications of all damage awards. The trier of fact may hear evidence of the premiums personally paid by the claimant to obtain any collateral source benefits paid or payable.
Section 15-40-30. (A) If liability is found in a tort action, regardless of the theory of liability, the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:
(1) any past damages for:
(a) medical and other costs of health care;
(b) other economic loss; and
(c) noneconomic loss; and
(2) any future damages and the periods over which they will accrue, on an annual basis, for each of the following types of damages:
(a) medical and other costs of health care;
(b) other economic loss; and
(c) noneconomic loss.
(B) The calculation of all future medical care and other costs of health care and future noneconomic loss must reflect the costs and losses during the period of time the claimant will sustain those costs and losses. The calculation for other economic loss must be based on the losses during the period of time the claimant would have lived but for the injury upon which the claim is based."
SECTION 4. Section 15-7-20 of the 1976 Code is amended to read:
"Section 15-7-20. (A) Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court to change the place of trial:
(1) For the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more counties the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed; and
(2) Against a public officer or person specially appointed to execute his duties for an act done by him in virtue of his office or against a person who by his command or in his aid shall do anything touching the duties of such officer.
(B) Notwithstanding any other provision of law or rule of civil procedure, an action against a licensed physician, osteopath, dentist, nurse, nurse practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought in the county in which the alleged act or omission occurred."
SECTION 5. Section 15-38-20 of the 1976 Code, as added by Act 432 of 1988, is amended by adding subsection (H) at the end:
"(H) Notwithstanding any other provision of law or rule of civil procedure, in an action against a licensed physician, psychologist, osteopath, dentist, nurse, nurse practitioner, physician assistant, pharmacist, podiatrist, optometrist, chiropractor, hospital, institution for the aged or infirm, or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services which involve joint tort-feasors, the trier of fact shall determine the percentage of fault for each joint tort-feasor, including named parties and absent tort-feasors, without regard to whether the joint tort-feasor is immune from damages. For noneconomic damages, a defendant's liability shall be several only. For economic damages, for any defendant whose fault is determined to be less than thirty percent, liability shall be several only and for any defendant whose fault is determined to be thirty percent or more, liability shall be joint and several only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor."
SECTION 6. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 7. This act takes effect July 1, 2003, and applies to all causes of action filed on or after that date.
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