Bill Text: MS HB1393 | 2017 | Regular Session | Introduced
Bill Title: Nursing home negligence; regulate causes of action.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2017-01-31 - Died In Committee [HB1393 Detail]
Download: Mississippi-2017-HB1393-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary B
By: Representative Gipson
House Bill 1393
AN ACT TO PROVIDE REGULATION FOR CAUSES OF ACTION FOR NURSING HOME NEGLIGENCE; TO PROVIDE THAT ANY CAUSE OF ACTION FOR NURSING HOME NEGLIGENCE MAY BE BROUGHT ONLY AGAINST THE LICENSEE, AND THE LICENSEE'S MANAGEMENT OR CONSULTING COMPANY; TO PROVIDE THAT A CAUSE OF ACTION MAY NOT BE ASSERTED AGAINST AN INDIVIDUAL OR ENTITY OTHER THAN THE LICENSEE, OR THE LICENSEE'S MANAGEMENT OR CONSULTING COMPANY, UNLESS, AFTER A MOTION FOR LEAVE TO AMEND HEARING, THE COURT OR AN ARBITRATION PANEL DETERMINES THAT THERE IS SUFFICIENT EVIDENCE IN THE RECORD OR PROFFERED BY THE CLAIMANT TO ESTABLISH REASONABLE CERTAIN SHOWINGS; TO PROVIDE THAT THE RESULTS OF A SURVEY CONDUCTED ON A NURSING FACILITY, INCLUDING ANY STATEMENT OF DEFICIENCIES AND ALL FINDINGS AND DEFICIENCIES CITED IN THE STATEMENT ON THE BASIS OF THE SURVEY, SHALL BE USED SOLELY TO DETERMINE THE NURSING FACILITY'S COMPLIANCE WITH CERTIFICATION REQUIREMENTS; TO PROVIDE THAT IN ADDITION TO ANY OTHER LIMITATION UNDER LAW, RECOVERY OF MEDICAL OR HEALTH CARE EXPENSES INCURRED IN AN ACTION ON A HEALTH CARE LIABILITY CLAIM IS LIMITED TO THE AMOUNT ACTUALLY PAID OR INCURRED BY OR ON BEHALF OF THE CLAIMANT; TO BRING FORWARD SECTION 15-1-36, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR CERTAIN TORTS AGAINST HEALTH CARE PROVIDERS, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) A cause of action for nursing home negligence or a violation of residents' rights which alleges direct or vicarious liability for the personal injury or death of a nursing home resident arising from such negligence or such violation of rights and which seeks damages for such injury or death may be brought only against the licensee, and the licensee's management or consulting company. A passive investor is not liable under this section. An action against any other individual or entity may be brought only pursuant to subsection (2).
(2) A cause of action may not be asserted against an individual or entity other than the licensee, or the licensee's management or consulting company, unless, after a motion for leave to amend hearing, the court or an arbitration panel determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that:
(a) The individual or entity owed a duty of reasonable care to the resident and that the individual or entity breached that duty; and
(b) The breach of that duty is a legal cause of loss, injury, death, or damage to the resident.
(3) For purposes of this section, the term "passive investor" means an individual, lender, investor, vendor or entity that does not participate in the decision-making or operation of the facility.
(4) (a) In a cause of action for nursing home negligence, on the motion of a party and after notice and a hearing, a trial court may authorize discovery of evidence of a defendant's net worth if the court finds in a written order that the claimant has demonstrated a substantial likelihood of success on the merits of a claim for punitive damages. Evidence submitted by a party to the court in support of or in opposition to a motion made under this subsection may be in the form of an affidavit or a response to discovery.
(b) If a trial court authorizes discovery under paragraph (a) of this subsection, the court's order may only authorize use of the least burdensome method available to obtain the net worth evidence.
(c) When reviewing an order authorizing or denying discovery of net worth evidence under this section, the reviewing court may consider only the evidence submitted by the parties to the trial court in support of or in opposition to the motion described by paragraph (a) of this subsection.
(d) If a party requests net worth discovery under this section, the court shall presume that the requesting party has had adequate time for the discovery of facts relating to punitive damages for purposes of allowing the party from whom net worth discovery is sought to move for summary judgment on the requesting party's claim for punitive damages.
(e) If the trial court determines net worth discovery is needed, it is mandated to order only the "least burdensome" method. This includes tax returns, financial statements, or Securities and Exchange Commission filings.
(5) (a) The results of a survey conducted on a nursing facility, including any statement of deficiencies and all findings and deficiencies cited in the statement on the basis of the survey, shall be used solely to determine the nursing facility's compliance with certification requirements.
(b) Such results, the statement of deficiencies, and the findings and deficiencies cited in the statement shall only be used in any of the following:
(i) An appeal of an administrative action by the Department of Medicaid, or contracting agency;
(ii) An action by a state department or agency to enforce a chapter of the revised code; or
(iii) Criminal proceedings.
(c) Surveys are not permitted to be admitted into evidence in any action on a health care liability claim or against a nursing home operator.
SECTION 2. (1) In addition to any other limitation under law, recovery of medical or health care expenses incurred in an action on a health care liability claim is limited to the amount actually paid or incurred by or on behalf of the claimant.
(2) "Actually paid and incurred" means expenses that have been or will be paid, and excludes the difference between the amount and the charges that the service provider bills but has no right to be paid, and any adjustments, write-offs, credits or discounts to amounts billed as circumstances may warrant.
SECTION 3. Section 15-1-36, Mississippi Code of 1972, is brought forward as follows:
15-1-36. (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred:
(a) In the event a foreign object introduced during a surgical or medical procedure has been left in a patient's body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient's body.
(b) In the event the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.
(3) Except as otherwise provided in subsection (4) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.
(4) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.
(5) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.
(6) When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under Section 15-1-55, Mississippi Code of 1972.
(7) For the purposes of subsection (3) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday.
(8) For the purposes of subsection (4) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday or from and after such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.
(9) The limitation established by this section as to a licensed physician, osteopath, dentist, hospital or nurse shall apply only to actions the cause of which accrued on or after July 1, 1976.
(10) The limitation established by this section as to pharmacists shall apply only to actions the cause of which accrued on or after July 1, 1978.
(11) The limitation established by this section as to podiatrists shall apply only to actions the cause of which accrued on or after July 1, 1979.
(12) The limitation established by this section as to optometrists and chiropractors shall apply only to actions the cause of which accrued on or after July 1, 1983.
(13) The limitation established by this section as to actions commenced on behalf of minors shall apply only to actions the cause of which accrued on or after July 1, 1989.
(14) The limitation established by this section as to institutions for the aged or infirm shall apply only to actions the cause of which occurred on or after January 1, 2003.
(15) No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
SECTION 4. This act shall take effect and be in force from and after July 1, 2017.
