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					                                  South Carolina General Assembly
                                      116th Session, 2005-2006

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


VERSIONS OF THIS BILL

12/8/2004
 1
 2
 3
 4
 5
 6
 7
 8
 9                       A BILL
10
11   TO AMEND TITLE 15 OF THE 1976 CODE BY ADDING
12   CHAPTER 32, ARTICLE 1, TO PROVIDE FOR THE
13   NONECONOMIC DAMAGES AWARDS ACT OF 2005, TO
14   DEFINE KEY TERMS, TO PROVIDE THAT A MEDICAL
15   MALPRACTICE CLAIMANT MAY NOT BE AWARDED
16   NONECONOMIC DAMAGES EXCEEDING $300,000, TO
17   PROVIDE CERTAIN EXCEPTIONS, AND TO PROVIDE FOR
18   THE INCREASE OR DECREASE OF THE CAP ON
19   NONECONOMIC DAMAGES BASED ON THE CONSUMER
20   PRICE INDEX, AND TO REQUIRE MEDIATION BEFORE A
21   MEDICAL MALPRACTICE ACTION MAY BE BROUGHT TO
22   TRIAL; TO AMEND TITLE 15, CHAPTER 35 BY ADDING
23   SECTION 15-35-400, TO PROVIDE THAT ANY PARTY IN AN
24   ACTION SEEKING MONETARY DAMAGES MAY FILE AN
25   OFFER OF JUDGMENT WITH THE COURT AND TO
26   PROVIDE CIRCUMSTANCES WHEN THE PERSON MAKING
27   THE OFFER MAY RECOVER CERTAIN COSTS IF THE
28   OFFER IS NOT ACCEPTED BY THE OPPOSING PARTY; TO
29   AMEND SECTION 34-31-20, RELATING TO THE LEGAL
30   RATE OF INTEREST APPLIED TO CIVIL JUDGMENTS, TO
31   SET THE LEGAL RATE OF INTEREST AT THE PRIME RATE
32   PLUS FOUR PERCENT; TO AMEND CHAPTER 79, TITLE 38
33   BY ADDING SECTION 38-79-40, TO PROVIDE THAT A
34   PERSON WHO SERVES ON THE BOARD OF THE JOINT
35   UNDERWRITING ASSOCIATION OR THE BOARD OF
36   GOVERNORS OF THE PATIENTS‟ COMPENSATION FUND
37   MAY NOT BE EMPLOYED OR COMPENSATED BY THE
38   JOINT UNDERWRITING ASSOCIATION OR THE PATIENT‟S
39   COMPENSATION FUND, TO AMEND SECTION 38-79-460,
40   RELATING TO THE MANAGEMENT OF THE PATIENT‟S
41   COMPENSATION FUND, TO PROVIDE THAT THE FUND
42   MUST BE MANAGED BY THE BOARD OF GOVERNORS;

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 1   TO AMEND SECTION 38-79-470 (1), RELATING TO
 2   WITHDRAWING MONIES FROM THE PATIENT‟S
 3   COMPENSATION FUND, TO DELETE THE PARTICIPATION
 4   OF THE COMPTROLLER GENERAL AND STATE
 5   TREASURER; AND TO AMEND SECTION 40-47-211,
 6   RELATING    TO   THE   MEDICAL    DISCIPLINARY
 7   COMMISSION, TO EXPAND THE MEDICAL DISCIPLINARY
 8   COMMISSION FROM THIRTY-SIX TO FORTY-TWO
 9   MEMBERS, TO ESTABLISH THAT SIX OF COMMISSION
10   MEMBERS MUST BE LAY PERSONS, AND THAT EACH
11   THREE PERSON PANEL OF THE COMMISSION MUST
12   INCLUDE ONE LAY COMMISSIONER.
13
14   Be it enacted by the General Assembly of the State of South
15   Carolina:
16
17   SECTION 1. Title 15 of the 1976 Code is amended by adding:
18
19                               “CHAPTER 32
20                                   Damages
21                                   Article 1
22                       Noneconomic Damage Awards
23      Section 15-32-10. This article may be cited as the „South
24   Carolina Noneconomic Damage Awards Act of 2005‟.
25      Section 15-32-20. As used in this chapter, unless the context
26   clearly requires otherwise:
27      (1) „Claimant‟ means the person suffering personal injury.
28      (2) „Economic damages‟ means pecuniary damages arising
29   from medical expenses and medical care, rehabilitation services,
30   custodial care, loss of earnings and earning capacity, loss of
31   income, burial costs, loss of use of property, costs of repair or
32   replacement of property, costs of obtaining substitute domestic
33   services, loss of employment, loss of business or employment
34   opportunities, and other monetary losses.
35      (3) „Health care provider‟ means a physician, surgeon,
36   osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor,
37   optometrist, podiatrist, hospital, nursing home, or any similar
38   category of licensed health care provider, including a health care
39   practice, association, partnership, or other legal entity.
40      (4) „Medical malpractice‟ means doing that which the
41   reasonably prudent health care provider would not do or not doing
42   that which the reasonably prudent health care provider would do
43   under the same or similar circumstances.

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 1      (5) „Noneconomic damages‟ means nonpecuniary damages
 2   arising from pain, suffering, inconvenience, physical impairment,
 3   disfigurement, mental anguish, emotional distress, loss of society
 4   and companionship, loss of consortium, injury to reputation,
 5   humiliation, other nonpecuniary damages, and any other theory of
 6   damages including, but not limited to, fear of loss, illness, or
 7   injury.
 8      (6) „Personal injury‟ means injuries to the person including,
 9   but not limited to, bodily injuries, mental distress or suffering, loss
10   of wages, loss of services, loss of consortium, and other
11   noneconomic damages and actual economic damages.
12      (7) „Personal injury action‟ means an action for personal
13   injury, including a wrongful death action pursuant to Sections
14   15-51-10 through 15-51-60 and a survival action pursuant to
15   Section 15-5-90.
16      Section 15-32-30. (A) In a medical malpractice personal injury
17   action, the prevailing plaintiff may be awarded compensation for:
18        (1) economic damages suffered by the claimant; and
19        (2) noneconomic damages suffered by the claimant not to
20   exceed three hundred thousand dollars, except as provided in
21   subsections (C) and (D).
22      (B) The provisions of subsection (A)(2) shall not be made
23   known to the jury through any means, including voir dire, the
24   introduction of evidence, argument of counsel, or instructions to
25   the jury.
26      (C) The limitations of subsection (A)(2) do not apply to actions
27   in which the plaintiff has suffered the following conditions:
28        (1) Brain injury;
29        (2) H.I.V. or A.I.D.S;
30        (3) Loss of limb;
31        (4) Loss of an organ;
32        (5) Loss of sight or hearing;
33        (6) Paralysis;
34        (7) Serious scars and disfigurement;
35        (8) Severe and permanent neurological injury;
36        (9) Death.
37      (D) At the end of each calendar year, the State Budget and
38   Control Board, Board of Economic Advisors, must determine the
39   increase or decrease in the ratio of the Consumer Price Index to the
40   index as of December 31 of the previous year, and the limitation
41   on compensation for noneconomic damages pursuant to subsection
42   (A)(2) must be increased or decreased accordingly. As soon as
43   practicable after this adjustment is calculated, the Director of the

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 1   State Budget and Control Board shall submit the revised limitation
 2   on compensation to The State Register for publication pursuant to
 3   Section 1-23-40(2), and the revised limitation becomes effective
 4   upon publication in The State Register. For purposes of this
 5   subsection, „Consumer Price Index‟ means the Consumer Price
 6   Index for All Urban Consumers as published by the United States
 7   Department of Labor, Bureau of Labor Statistics.
 8      (E) For purposes of subsection (C), the following definitions
 9   apply:
10         (1) „Brain injury‟ means physical injury to the brain,
11   resulting in loss of function, which is permanent, quantifiable, and
12   verifiable by objective medical testing.
13         (2) „H.I.V. or A.I.D.S.‟ means infection with human
14   immunodeficiency virus (H.I.V.) or Acquired Immune Deficiency
15   Syndrome disease (A.I.D.S.).
16         (3) „Loss of limb‟ means the complete severance and loss of
17   a hand, arm, leg, or foot.
18         (4) „Loss of an organ‟ means the loss of effective function of
19   an organ essential for life.
20         (5) „Loss of sight or hearing‟ means a complete, permanent,
21   and non-correctable loss of sight or hearing as defined in the
22   American Medical Association Guides to Permanent Impairment.
23         (6) „Paralysis‟ means quadriplegia or paraplegia.
24         (7) „Serious scars and disfigurement‟ means seriously
25   disfiguring facial scars, or scars covering more than twenty-five
26   percent of the body.
27         (8) „Neurological injury‟ means physical injury to a nerve
28   which is permanent, quantifiable, and verifiable by objective
29   medical testing and which injury causes a permanent and complete
30   loss of use of a hand, arm, leg, or foot.
31      Section 15-32-40. The provisions of this article do not affect
32   any right, privilege, or provision of the South Carolina Tort Claims
33   Act pursuant to Chapter 78, Title 15.
34      Section 15-32-50. At any time before a medical malpractice
35   action is brought to trial, the parties shall participate in mediation
36   governed by procedures established in the South Carolina Circuit
37   Court Alternative Dispute Resolution Rules in effect at the time for
38   the State or any portion of the State. Parties may also agree to
39   participate in binding arbitration.
40      Section 15-32-60. If a judge finds that an expert health care
41   provider in this State may have engaged in any unjustifiable
42   conduct in connection with testifying as an expert in deposition or
43   at trial in a medical malpractice action, the judge must report the

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 1   expert to the state entity that licenses and regulates the profession
 2   of the expert or the type of health care entity represented by the
 3   expert.”
 4
 5   SECTION 2.        Title 15, Chapter 35 of the 1976 Code is amended
 6   by adding:
 7
 8      “Section 15-35-400. (A) Except in domestic relations actions,
 9   after commencement of any civil action based upon contract or
10   seeking the recovery of money damages, whether or not other
11   relief is sought, any party may, at any time more than twenty days
12   before the actual trial date, file with the clerk of the court a written
13   offer of judgment signed by the offeror or his attorney, directed to
14   the opposing party, offering to take judgment in the offeror‟s
15   favor, or as the case may be, to allow judgment to be taken against
16   the offeror, for a sum stated therein, for property, or to the effect
17   specified in the offer. The offeror shall give notice of the offer of
18   judgment to the offeree‟s attorney, or if the offeree is not
19   represented by an attorney, to the offeree himself, in accordance
20   with the service rules for motions and other pleadings set forth in
21   the South Carolina Rules of Civil Procedure. Within twenty days
22   after notification, or at least ten days prior to the trial date,
23   whichever date is earlier, the offeree or his attorney may file with
24   the clerk of the court a written acceptance of the offer of judgment.
25   Upon the filing, the clerk shall enter immediately judgment of the
26   stipulation. If the offer of judgment is not accepted within twenty
27   days after notification or prior to or on the tenth day before the
28   actual trial date, whichever date occurs first, the offer shall be
29   considered rejected and evidence thereof is not be admissible
30   except in a proceeding after the trial to fix costs, interests,
31   attorney‟s fees, and other recoverable monies. Any offeror may
32   withdraw an offer of judgment prior to its acceptance or prior to
33   the date on which it would be considered rejected by giving notice
34   to the offeree or his attorney in accordance with the service rules
35   for motions and other pleadings outlined in the South Carolina
36   Rules of Civil Procedure. Any offeror may file a subsequent offer
37   of judgment in any amount provided that the subsequent offer
38   supercedes any earlier offer that was rejected by the offeree or
39   withdrawn by the offeror, and, on filing, terminates any rights of
40   interest or costs that may have been applicable to the superceded
41   offer. Notwithstanding this provision, an offer is not considered
42   rejected upon the making of a counteroffer by the offeree, but shall
43   remain effective until accepted, rejected, or withdrawn as provided

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 1   in this subsection. Any and all offers of judgment and any
 2   acceptance of offers of judgment must be included by the clerk in
 3   the record of the case.
 4      (B) If an offer of judgment is not accepted and the offeror
 5   obtains a verdict or determination at least as favorable as the
 6   rejected offer, the offeror shall be allowed to recover from the
 7   offeree: (1) any administrative, filing, or other court costs from the
 8   date of the offer until judgment; (2) if the offeror is a plaintiff,
 9   eight percent interest computed on the amount of the verdict or
10   award from the date of the offer; or (3) if the offeror is a defendant,
11   a reduction from the judgment or award of eight percent interest
12   computed on the amount of the verdict or award from the date of
13   the offer.
14      (C) This section shall not be interpreted to abrogate the
15   contractual rights of any party concerning the recovery of
16   attorney‟s fees or other monies in accordance with the provisions
17   of any written contract between the parties to the action.”
18
19   SECTION 3. Section 34-31-20 of the 1976 Code is amended to
20   read:
21
22      “Section 34-31-20. (A) In all cases of accounts stated and in all
23   cases wherein any sum or sums of money shall be ascertained and,
24   being due, shall draw interest according to law, the legal interest
25   shall be at the rate of eight and three-fourths percent per annum.
26      (B) All A money decrees and judgments decree or judgment of
27   courts the court enrolled or entered shall must draw interest
28   according to law. The legal rate of interest is at the rate of twelve
29   percent a year equal to the prime rate as listed in the first edition of
30   the Wall Street Journal published for each calendar year for which
31   the damages are awarded, plus four percent, compounded annually.
32   The South Carolina Supreme Court shall issue an order by January
33   15 of each year confirming the annual prime rate. This section
34   applies to all judgments entered on or after July 1, 2005. For
35   judgments entered between July 1, 2005, and January 14, 2006, the
36   legal rate of interest shall be the first prime rate as published in the
37   first edition of the Wall Street Journal after January 1, 2005, plus
38   four per cent.”
39
40   SECTION 4. Article 1, Chapter 79, Title 38 is amended by
41   adding:
42


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 1      “Section 38-79-40. A person who serves on the Board of the
 2   Joint Underwriting Association or the Board of Governors of the
 3   Patients‟ Compensation Fund is prohibited from being employed
 4   in any manner or compensated by the Joint Underwriting
 5   Association or the Patients‟ Compensation Fund, and this
 6   prohibition continues for one year after the person ceases to be a
 7   member of the board.
 8      No provision of this section may be construed to prohibit an
 9   insurance agent from selling insurance products to the
10   association.”
11
12   SECTION 5. Section 38-79-460 of the 1976 Code is amended to
13   read:
14
15      “Section 38-79-460. The Fund fund, and any income from it,
16   must be held in trust, deposited in the office of the State Treasurer
17   and kept in a segregated account entitled “Patients‟ Compensation
18   Fund”, invested and reinvested by the State Treasurer in the same
19   manner as provided by law for the investment of other state funds
20   in interest-bearing investments and may not become a part of the
21   general fund of the State. All expenses of collecting, protecting,
22   and administering the Fund must be paid from the Fund managed
23   by the board according to its plan of operation developed pursuant
24   to Section 38-79-430.”
25
26   SECTION 6. Section 38-79-470(1) of the 1976 Code is amended
27   to read:
28
29     “(1) Monies may be withdrawn from the Fund fund only upon
30   the signature of the chairman of the Board of Governors or his
31   designee upon written warrants of the Comptroller General, drawn
32   on the State Treasurer to the payee designated in the requisition.”
33
34   SECTION 7. Section 40-47-211 is amended to read:
35
36      “Section 40-47-211. (A) There is created the Medical
37   Disciplinary Commission of the State Board of Medical Examiners
38   to be composed of thirty-six forty-two members. The Of these
39   thirty-six members of the commission must be licensed physicians
40   practicing their profession,.        and five      Five physician
41   commissioners must be elected from each of the six congressional
42   districts, and six physician members of the commission must be
43   elected at large from across the State. The board shall conduct the

     [36]                              7
 1   elections, and the elections for the physician members shall
 2   provide for participation by any physician currently licensed and
 3   actively practicing medicine in South Carolina and residing in the
 4   congressional district in which the election is held. At-large
 5   physician members must be currently licensed and actively
 6   practicing medicine in South Carolina and must reside within the
 7   State at the time of election and throughout their term terms. One
 8   physician commissioner initially elected from each district shall
 9   serve for a term of one year and until his successor is elected and
10   qualifies, one physician commissioner initially elected from each
11   district shall serve for a term of two years and until his successor is
12   elected and qualifies, and one physician commissioner initially
13   elected from each district shall serve for a term of three years and
14   until his successor is elected and qualifies. The successors of the
15   initial physician commissioners shall serve for terms of three years
16   or until their successors are elected and qualify. The members of
17   the commission are limited to three terms. The members
18   appointed to the board may not simultaneously serve as a
19   commissioner. In case of any vacancy by way of death,
20   resignation, or otherwise, the board shall appoint a successor to
21   serve for the unexpired term. Where justice, fairness, or other
22   circumstances so require, the board may appoint past
23   commissioners to hear complaints in individual cases.
24      (B) Six members of the commission must be lay commissioners
25   who each must have, at a minimum, a baccalaureate degree or the
26   equivalent, and have no ascertainable ties to the health care
27   industry. The lay commissioners must be appointed by the
28   Governor from each of the six congressional districts, with the
29   advice and consent of the Senate. Each lay commissioner must be
30   a registered voter and reside in the congressional district he
31   represents throughout his term. Each lay commissioner initially
32   elected from each district shall serve for a term of three years and
33   until his successor is elected and qualifies. The lay commissioners
34   are limited to three consecutive terms.
35      (C) The commission is empowered to investigate and hear
36   those complaints against physicians (medical and osteopathic) filed
37   with the board pursuant to Section 40-47-200. The hearing must
38   be conducted in accordance with Act 176 of 1977 (Administrative
39   Procedures Act) and with regulations promulgated by the board
40   and must be before a panel composed of at least three
41   commissioners designated by the board, and one of those three
42   commissioners must be a lay member. The panel is empowered to
43   hear the matters complained of and to make findings of fact and

     [36]                               8
 1   recommendations as to disposition of those matters to the board.
 2   The panel shall make a certified report of the proceedings before it,
 3   including its findings of fact, conclusions, and recommendations,
 4   which must be filed together with a transcript of the testimony
 5   taken and exhibits as may have been in evidence before it with the
 6   administrator of the board, and a copy of the report must be
 7   delivered to the office of general counsel and the licensee or his
 8   counsel.”
 9
10   SECTION 8. (1) This act takes effect July 1, 2005 and Section 1
11   applies to all causes of action arising or accruing after the effective
12   date.
13      (2) As of this act‟s effective date, the State Treasurer shall
14   relinquish the management of funds in the Patient‟s Compensation
15   Fund, created pursuant to Section 38-79-420, to the Board of
16   Governors of the fund, and premiums paid on or after this act‟s
17   effective date must be deposited with the Board of Governors of
18   the fund. The fund must be fully transferred to the Board of
19   Governors, and the State Treasurer may not hold any deposits of
20   the fund as of ninety days after this act‟s effective date.
21                                 ----XX----
22




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