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S. 36
STATUS INFORMATION
General Bill
Sponsors: Senator Richardson
Document Path: l:\s-res\shr\004dama.mrh.doc
Introduced in the Senate on January 11, 2005
Currently residing in the Senate Committee on Judiciary
Summary: Noneconomic Damages Awards Act of 2005
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/8/2004 Senate Prefiled 12/8/2004 Senate Referred to Committee on Judiciary 1/11/2005 Senate Introduced and read first time SJ-98 1/11/2005 Senate Referred to Committee on Judiciary SJ-98
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND TITLE 15 OF THE 1976 CODE BY ADDING CHAPTER 32, ARTICLE 1, TO PROVIDE FOR THE NONECONOMIC DAMAGES AWARDS ACT OF 2005, TO DEFINE KEY TERMS, TO PROVIDE THAT A MEDICAL MALPRACTICE CLAIMANT MAY NOT BE AWARDED NONECONOMIC DAMAGES EXCEEDING $300,000, TO PROVIDE CERTAIN EXCEPTIONS, AND TO PROVIDE FOR THE INCREASE OR DECREASE OF THE CAP ON NONECONOMIC DAMAGES BASED ON THE CONSUMER PRICE INDEX, AND TO REQUIRE MEDIATION BEFORE A MEDICAL MALPRACTICE ACTION MAY BE BROUGHT TO TRIAL; TO AMEND TITLE 15, CHAPTER 35 BY ADDING SECTION 15-35-400, TO PROVIDE THAT ANY PARTY IN AN ACTION SEEKING MONETARY DAMAGES MAY FILE AN OFFER OF JUDGMENT WITH THE COURT AND TO PROVIDE CIRCUMSTANCES WHEN THE PERSON MAKING THE OFFER MAY RECOVER CERTAIN COSTS IF THE OFFER IS NOT ACCEPTED BY THE OPPOSING PARTY; TO AMEND SECTION 34-31-20, RELATING TO THE LEGAL RATE OF INTEREST APPLIED TO CIVIL JUDGMENTS, TO SET THE LEGAL RATE OF INTEREST AT THE PRIME RATE PLUS FOUR PERCENT; TO AMEND CHAPTER 79, TITLE 38 BY ADDING SECTION 38-79-40, TO PROVIDE THAT A PERSON WHO SERVES ON THE BOARD OF THE JOINT UNDERWRITING ASSOCIATION OR THE BOARD OF GOVERNORS OF THE PATIENTS' COMPENSATION FUND MAY NOT BE EMPLOYED OR COMPENSATED BY THE JOINT UNDERWRITING ASSOCIATION OR THE PATIENT'S COMPENSATION FUND, TO AMEND SECTION 38-79-460, RELATING TO THE MANAGEMENT OF THE PATIENT'S COMPENSATION FUND, TO PROVIDE THAT THE FUND MUST BE MANAGED BY THE BOARD OF GOVERNORS; TO AMEND SECTION 38-79-470 (1), RELATING TO WITHDRAWING MONIES FROM THE PATIENT'S COMPENSATION FUND, TO DELETE THE PARTICIPATION OF THE COMPTROLLER GENERAL AND STATE TREASURER; AND TO AMEND SECTION 40-47-211, RELATING TO THE MEDICAL DISCIPLINARY COMMISSION, TO EXPAND THE MEDICAL DISCIPLINARY COMMISSION FROM THIRTY-SIX TO FORTY-TWO MEMBERS, TO ESTABLISH THAT SIX OF COMMISSION MEMBERS MUST BE LAY PERSONS, AND THAT EACH THREE PERSON PANEL OF THE COMMISSION MUST INCLUDE ONE LAY COMMISSIONER.
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. This article may be cited as the 'South Carolina Noneconomic Damage Awards Act of 2005'.
Section 15-32-20. As used in this chapter, unless the context clearly requires otherwise:
(1) 'Claimant' means the person suffering personal injury.
(2) 'Economic damages' means 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 monetary losses.
(3) 'Health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, hospital, nursing home, or any similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.
(4) 'Medical malpractice' means doing that which the reasonably prudent health care provider would not do or not doing that which the reasonably prudent health care provider would do under the same or similar circumstances.
(5) 'Noneconomic damages' means 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 including, but not limited to, fear of loss, illness, or injury.
(6) 'Personal injury' means injuries to the person including, but not limited to, bodily injuries, mental distress or suffering, loss of wages, loss of services, loss of consortium, and other noneconomic damages and actual economic damages.
(7) 'Personal injury action' means an action for personal injury, including a wrongful death action pursuant to Sections 15-51-10 through 15-51-60 and a survival action pursuant to Section 15-5-90.
Section 15-32-30. (A) In a medical malpractice personal injury action, the prevailing plaintiff may be awarded compensation for:
(1) economic damages suffered by the claimant; and
(2) noneconomic damages suffered by the claimant not to exceed three hundred thousand dollars, except as provided in subsections (C) and (D).
(B) The provisions of subsection (A)(2) shall not be made known to the jury through any means, including voir dire, the introduction of evidence, argument of counsel, or instructions to the jury.
(C) The limitations of subsection (A)(2) do not apply to actions in which the plaintiff has suffered the following conditions:
(1) Brain injury;
(2) H.I.V. or A.I.D.S;
(3) Loss of limb;
(4) Loss of an organ;
(5) Loss of sight or hearing;
(6) Paralysis;
(7) Serious scars and disfigurement;
(8) Severe and permanent neurological injury;
(9) Death.
(D) At the end of each calendar year, the State Budget and Control Board, Board of Economic Advisors, must determine the increase or decrease in the ratio of the Consumer Price Index to the index as of December 31 of the previous year, and the limitation on compensation for noneconomic damages pursuant to subsection (A)(2) must be increased or decreased accordingly. As soon as practicable after this adjustment is calculated, the Director of the State Budget and Control Board shall submit the revised limitation on compensation to The State Register for publication pursuant to Section 1-23-40(2), and the revised limitation becomes effective upon publication in The State Register. For purposes of this subsection, 'Consumer Price Index' means the Consumer Price Index for All Urban Consumers as published by the United States Department of Labor, Bureau of Labor Statistics.
(E) For purposes of subsection (C), the following definitions apply:
(1) 'Brain injury' means physical injury to the brain, resulting in loss of function, which is permanent, quantifiable, and verifiable by objective medical testing.
(2) 'H.I.V. or A.I.D.S.' means infection with human immunodeficiency virus (H.I.V.) or Acquired Immune Deficiency Syndrome disease (A.I.D.S.).
(3) 'Loss of limb' means the complete severance and loss of a hand, arm, leg, or foot.
(4) 'Loss of an organ' means the loss of effective function of an organ essential for life.
(5) 'Loss of sight or hearing' means a complete, permanent, and non-correctable loss of sight or hearing as defined in the American Medical Association Guides to Permanent Impairment.
(6) 'Paralysis' means quadriplegia or paraplegia.
(7) 'Serious scars and disfigurement' means seriously disfiguring facial scars, or scars covering more than twenty-five percent of the body.
(8) 'Neurological injury' means physical injury to a nerve which is permanent, quantifiable, and verifiable by objective medical testing and which injury causes a permanent and complete loss of use of a hand, arm, leg, or foot.
Section 15-32-40. The provisions of this article do not affect any right, privilege, or provision of the South Carolina Tort Claims Act pursuant to Chapter 78, Title 15.
Section 15-32-50. At any time before a medical malpractice action is brought to trial, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the State. Parties may also agree to participate in binding arbitration.
Section 15-32-60. If a judge finds that an expert health care provider in this State may have engaged in any unjustifiable conduct in connection with testifying as an expert in deposition or at trial in a medical malpractice action, the judge must report the expert to the state entity that licenses and regulates the profession of the expert or the type of health care entity represented by the expert."
SECTION 2. Title 15, Chapter 35 of the 1976 Code is amended by adding:
"Section 15-35-400. (A) Except in domestic relations actions, after commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, any party may, at any time more than twenty days before the actual trial date, file with the clerk of the court a written offer of judgment signed by the offeror or his attorney, directed to the opposing party, offering to take judgment in the offeror's favor, or as the case may be, to allow judgment to be taken against the offeror, for a sum stated therein, for property, or to the effect specified in the offer. The offeror shall give notice of the offer of judgment to the offeree's attorney, or if the offeree is not represented by an attorney, to the offeree himself, in accordance with the service rules for motions and other pleadings set forth in the South Carolina Rules of Civil Procedure. Within twenty days after notification, or at least ten days prior to the trial date, whichever date is earlier, the offeree or his attorney may file with the clerk of the court a written acceptance of the offer of judgment. Upon the filing, the clerk shall enter immediately judgment of the stipulation. If the offer of judgment is not accepted within twenty days after notification or prior to or on the tenth day before the actual trial date, whichever date occurs first, the offer shall be considered rejected and evidence thereof is not be admissible except in a proceeding after the trial to fix costs, interests, attorney's fees, and other recoverable monies. Any offeror may withdraw an offer of judgment prior to its acceptance or prior to the date on which it would be considered rejected by giving notice to the offeree or his attorney in accordance with the service rules for motions and other pleadings outlined in the South Carolina Rules of Civil Procedure. Any offeror may file a subsequent offer of judgment in any amount provided that the subsequent offer supercedes any earlier offer that was rejected by the offeree or withdrawn by the offeror, and, on filing, terminates any rights of interest or costs that may have been applicable to the superceded offer. Notwithstanding this provision, an offer is not considered rejected upon the making of a counteroffer by the offeree, but shall remain effective until accepted, rejected, or withdrawn as provided in this subsection. Any and all offers of judgment and any acceptance of offers of judgment must be included by the clerk in the record of the case.
(B) If an offer of judgment is not accepted and the offeror obtains a verdict or determination at least as favorable as the rejected offer, the offeror shall be allowed to recover from the offeree: (1) any administrative, filing, or other court costs from the date of the offer until judgment; (2) if the offeror is a plaintiff, eight percent interest computed on the amount of the verdict or award from the date of the offer; or (3) if the offeror is a defendant, a reduction from the judgment or award of eight percent interest computed on the amount of the verdict or award from the date of the offer.
(C) This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney's fees or other monies in accordance with the provisions of any written contract between the parties to the action."
SECTION 3. Section 34-31-20 of the 1976 Code is amended to read:
"Section 34-31-20. (A) In all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum.
(B) All A money decrees and judgments decree or judgment of courts the court enrolled or entered shall must draw interest according to law. The legal rate of interest is at the rate of twelve percent a year equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus four percent, compounded annually. The South Carolina Supreme Court shall issue an order by January 15 of each year confirming the annual prime rate. This section applies to all judgments entered on or after July 1, 2005. For judgments entered between July 1, 2005, and January 14, 2006, the legal rate of interest shall be the first prime rate as published in the first edition of the Wall Street Journal after January 1, 2005, plus four per cent."
SECTION 4. Article 1, Chapter 79, Title 38 is amended by adding:
"Section 38-79-40. A person who serves on the Board of the Joint Underwriting Association or the Board of Governors of the Patients' Compensation Fund is prohibited from being employed in any manner or compensated by the Joint Underwriting Association or the Patients' Compensation Fund, and this prohibition continues for one year after the person ceases to be a member of the board.
No provision of this section may be construed to prohibit an insurance agent from selling insurance products to the association."
SECTION 5. Section 38-79-460 of the 1976 Code is amended to read:
"Section 38-79-460. The Fund fund, and any income from it, must be held in trust, deposited in the office of the State Treasurer and kept in a segregated account entitled "Patients' Compensation Fund", invested and reinvested by the State Treasurer in the same manner as provided by law for the investment of other state funds in interest-bearing investments and may not become a part of the general fund of the State. All expenses of collecting, protecting, and administering the Fund must be paid from the Fund managed by the board according to its plan of operation developed pursuant to Section 38-79-430."
SECTION 6. Section 38-79-470(1) of the 1976 Code is amended to read:
"(1) Monies may be withdrawn from the Fund fund only upon the signature of the chairman of the Board of Governors or his designee upon written warrants of the Comptroller General, drawn on the State Treasurer to the payee designated in the requisition."
SECTION 7. Section 40-47-211 is amended to read:
"Section 40-47-211. (A) There is created the Medical Disciplinary Commission of the State Board of Medical Examiners to be composed of thirty-six forty-two members. The Of these thirty-six members of the commission must be licensed physicians practicing their profession,. and five Five physician commissioners must be elected from each of the six congressional districts, and six physician members of the commission must be elected at large from across the State. The board shall conduct the elections, and the elections for the physician members shall provide for participation by any physician currently licensed and actively practicing medicine in South Carolina and residing in the congressional district in which the election is held. At-large physician members must be currently licensed and actively practicing medicine in South Carolina and must reside within the State at the time of election and throughout their term terms. One physician commissioner initially elected from each district shall serve for a term of one year and until his successor is elected and qualifies, one physician commissioner initially elected from each district shall serve for a term of two years and until his successor is elected and qualifies, and one physician commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The successors of the initial physician commissioners shall serve for terms of three years or until their successors are elected and qualify. The members of the commission are limited to three terms. The members appointed to the board may not simultaneously serve as a commissioner. In case of any vacancy by way of death, resignation, or otherwise, the board shall appoint a successor to serve for the unexpired term. Where justice, fairness, or other circumstances so require, the board may appoint past commissioners to hear complaints in individual cases.
(B) Six members of the commission must be lay commissioners who each must have, at a minimum, a baccalaureate degree or the equivalent, and have no ascertainable ties to the health care industry. The lay commissioners must be appointed by the Governor from each of the six congressional districts, with the advice and consent of the Senate. Each lay commissioner must be a registered voter and reside in the congressional district he represents throughout his term. Each lay commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The lay commissioners are limited to three consecutive terms.
(C) The commission is empowered to investigate and hear those complaints against physicians (medical and osteopathic) filed with the board pursuant to Section 40-47-200. The hearing must be conducted in accordance with Act 176 of 1977 (Administrative Procedures Act) and with regulations promulgated by the board and must be before a panel composed of at least three commissioners designated by the board, and one of those three commissioners must be a lay member. The panel is empowered to hear the matters complained of and to make findings of fact and recommendations as to disposition of those matters to the board. The panel shall make a certified report of the proceedings before it, including its findings of fact, conclusions, and recommendations, which must be filed together with a transcript of the testimony taken and exhibits as may have been in evidence before it with the administrator of the board, and a copy of the report must be delivered to the office of general counsel and the licensee or his counsel."
SECTION 8. (1) This act takes effect July 1, 2005 and Section 1 applies to all causes of action arising or accruing after the effective date.
(2) As of this act's effective date, the State Treasurer shall relinquish the management of funds in the Patient's Compensation Fund, created pursuant to Section 38-79-420, to the Board of Governors of the fund, and premiums paid on or after this act's effective date must be deposited with the Board of Governors of the fund. The fund must be fully transferred to the Board of Governors, and the State Treasurer may not hold any deposits of the fund as of ninety days after this act's effective date.
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