A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 15-32-710 SO AS TO DEFINE TERMS RELATED TO CALCULATING MEDICAL EXPENSES FOR DAMAGE AWARDS; BY ADDING SECTION 15-32-720 SO AS TO PROVIDE THAT THE PLAINTIFF HAS THE BURDEN TO PROVE AMOUNT OF HIS DAMAGES ARISING FROM HEALTHCARE TREATMENT OR SERVICES; TO PROVIDE FOR THE EVIDENCE ALLOWED TO PROVE THE AMOUNT OF DAMAGES; TO PROVIDE FOR CERTAIN REQUIRED DISCLOSURES BY THE PLAINTIFF, AND TO PROVIDE THAT IT IS THE INTENT OF THE GENERAL ASSEMBLY THAT THIS SECTION ABROGATES THE COMMON LAW COLLATERAL SOURCE RULE TO THE EXTENT NECESSARY TO INTRODUCE THE EVIDENCE DESCRIBED IN THIS ACT.

 

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

 

SECTION 1.  Chapter 32, Title 15 of the S.C. Code is amended by adding:

 

Article 7

 

Calculating Medical Expenses for Damage Awards

 

    Section 15-32-710. For the purposes of this article:

    (1) "Health insurance" means any third-party health or disability insurance, including but not limited to, arrangements with entities certified or authorized under federal law or under Chapter 38, state or federal health care benefit programs, workers compensation, and personal injury protection policies.

    (2) "Health care provider" means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.

    (3) "Letter of protection" means any arrangement by which a health care provider renders treatment or services in exchange for a promise of payment for the claimant's medical expenses from any judgment or settlement of a civil action. The term includes any such arrangement, regardless of whether referred to as a letter of protection.

 

    Section 15-32-720. (A) In any civil action to recover damages for health care treatment or services, the plaintiff has the burden of proof to offer evidence to prove the amount of the damages he claims. Damages for health care treatment or services shall be limited to the reasonable value of medically necessary care, and the amount of the damages shall be determined by the trier of fact.

    (B) Evidence offered to prove the amount of damages for health care treatment or services shall include the amounts charged or reasonably expected to be charged for past, present, or future health care treatment or services and:

       (1) if the claimant has any form of public or private health insurance, the amounts actually necessary to satisfy the charges pursuant to the insurance contract or applicable coverage, regardless of whether the health insurance has been used, is used, or will be used to satisfy the charges; or

       (2) if the claimant does not have health insurance, the amount the provider has agreed to accept in satisfaction of the charges or, in the absence of such an agreement, one hundred twenty percent of the Medicare reimbursement rate in effect on the date of the plaintiff's incurred health care treatment or services, or, if there is no applicable Medicare rate for a service, one hundred seventy percent of the applicable state Medicaid rate.

    (C) In any claim for health care expenses for treatment or services rendered under a letter of protection, the plaintiff must disclose:

       (1) a copy of the letter of protection;

       (2) all billings for the plaintiff's treatment or services expenses, which must be itemized and, to the extent applicable, coded according to generally accepted billing practices;

       (3) if the health care provider sells the accounts receivable for the plaintiff's health care expenses to a third party, then:

           (a) the name of the third party who purchased the accounts; and

           (b) the dollar amount for which the third party purchased the accounts including, but not limited to, any discount provided below the invoice amount;

       (4) whether the claimant, at the time the treatment or services were rendered, had health insurance and, if so, the identity of insurance carrier and details concerning the coverage provided for in the insurance policy; and

       (5) whether the claimant was referred for treatment or services under a letter of protection and, if so, the identity of the person who made the referral. If the referral is made by the claimant's attorney, disclosure of the referral does not fall within the attorney-client privilege, is required, and evidence of the referral is admissible. Under these circumstances, the financial relationship between an attorney or law firm and a health care provider, including the number of referrals, frequency, and financial benefit obtained, is relevant to the issue of the bias of a testifying health care provider.

    (D) Nothing in this section shall be construed or applied to limit the right of a plaintiff or defendant to present evidence or testimony, or both, challenging the reasonableness of health care expenses, whether incurred or projected future expenses, or the medical necessity of any treatment or service.

    (E) It is the intent of the General Assembly that this section abrogates the common law collateral source rule to the extent necessary to introduce the evidence described in this section; provided however, that nothing in this section shall be construed or applied to prevent the court from issuing appropriate jury instructions to clarify the role of collateral source payments and to prevent potential jury confusion regarding the effect of collateral source payments on the plaintiff's recovery.

 

SECTION 2.  The Code Commissioner is directed to restyle Chapter 32, Title 15 as "Damage Awards."

 

SECTION 3.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 4.  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 5.  This act takes effect upon approval by the Governor.

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