HB 8 (BR 78) - S. Nunn, P. Bather, T. Feeley, K. Hall, R. Wilkey
AN ACT relating to physician medical malpractice.
Amend sections of KRS 342.801 to 342.839 to create within the Kentucky employers' mutual insurance authority the Kentucky employers' mutual insurance company and the Kentucky physicians' mutual insurance company; define "physician" and "professional negligence"; increase the authority board from 7 to 10 members; require at least 2 board members to be physicians and require at least 1 member to have medical malpractice insurance expertise; require the board to appoint a director of the Kentucky employers' mutual insurance company and appoint a director of the Kentucky physicians' mutual insurance company; provide that the Kentucky physicians' mutual insurance company shall provide medical malpractice insurance to physicians no sooner than December 1, 2003; require the authority to keep the moneys, funds, and assets of the 2 insurance companies separate and apart; authorize the board to provide initial funding to the Kentucky physicians' mutual insurance company from a loan from the reserves of the Kentucky employers' mutual insurance company; create new sections of KRS Chapter 411 to establish medical review panels to review proposed malpractice complaints against physicians; provide that not earlier than 20 days after the filing of a proposed complaint either party may request the formation of a medical review panel by serving a request upon all parties and the commissioner of insurance; provide that a medical review panel shall consist of 1 attorney and 3 physicians; require the attorney to act as chair and serve in an advisory, nonvoting capacity; require the parties to select a chair by agreement within 15 days after filing the request for formation of the panel; provide for process for selection of chair if no agreement can be reached; provide that all physicians in Kentucky shall be available to serve on panels; require each party to select a physician member within 15 days after the chair is selected; require the 2 physician members within 15 days of selection to select the third physician member; allow for written challenge without cause to a panel member; require the chair within 5 days after the panel is formed to notify both parties and the commissioner; provide for member or chair being excused from serving on panel; allow each party to present evidence and to take depositions; require each panel member to take an oath; provide that the panel has the sole duty to present the panel's expert opinion within 30 days after reviewing all evidence; provide that the expert opinion is admissible as evidence in any action subsequently brought by the claimant in a court of law; require the chair to submit a copy of the panel's report to the commissioner and all parties and attorneys; direct the panel to give its expert opinion within 180 days after selection of the last member of the initial panel; permit a physician member to be paid up to $350 for all work performed and travel expenses; permit the chair to be paid up to $250 per diem up to $2,000; require the party in whose favor the majority opinion is written to pay all fees and travel expenses of the panel; provide that if there is no majority opinion, each party shall pay 50% of the cost; Sections of KRS Chapter 411; EFFECTIVE AUGUST 1, 2003.
HB 8 - AMENDMENTS
HCS - Create new sections of KRS Chapter 305 to create the Kentucky Providers' Mutual Insurance Authority as a nonprofit, independent, self-supporting de jure municipal corporation and political subdivision of the state; provide for a board of directors which shall include the board of the Kentucky Employers' Mutual Insurance Authority; provide that the board functions similar to the governing body of a mutual insurer; establish powers of the board; direct the board to hire a manager with at least five years experience as an executive at the general management level in insurance operations with expertise in medical malpractice or in the management of a state fund for medical malpractice; direct the manager to conduct the day-to-day operations of the authority; authorize the authority to provide medical malpractice insurance coverage to any health care provider who pays the premiums and meets any conditions and qualifications established by the board; require the authority to provide coverage to any health care provider who is unable to obtain coverage in the private market; provide for regulation of rates; require rates to be based on Kentucky loss experience data unless supplemental data is needed for statistical credibility; require the authority to report annually to the Interim Joint Committee on Banking and Insurance on its efforts to build and maintain a surplus; permit the board to declare an annual dividend; require a quarterly report of assets and liabilities to the board, Governor, and Legislative Research Commission; provide that in determining solvency of the authority the practice of discounting the funds to reduce future liabilities is not allowed; require an annual report of the business done by the authority to be delivered to the Governor, insurance commissioner, auditor of public accounts, attorney general, and the Legislative Research Commission; direct the board to formulate an investment policy; direct the manager to compile and maintain statistical data; provide that the authority may not receive direct appropriations from the general fund; permit the board to request initial funding from the Governor and secretary of the Finance and Administration Cabinet; allow the Kentucky Employers' Mutual Insurance Authority to loan the authority up to $5,000,000 to be repaid over 7 years; permit an annual or one-time surcharge to be levied on physicians insured by the authority; permit the board to issue revenue bonds in an amount outstanding not to exceed $40,000,000 if approved by the secretary of the Finance and Administration Cabinet; provide that agents selling insurance contracts of the authority be licensed; provide that no board member, the manager, or employee shall be held personally liable for any act performed in an official capacity; require compliance with the executive branch code of ethics; exempt the authority from participation in any plan, pool, association, guarantee, or insolvency fund authorized by the insurance code; require the board to comply with the open meetings and open records laws; direct the Attorney General and the Auditor of Public Accounts to monitor the operations of the authority; require policies to be approved by the commissioner of insurance; provide that the authority is subject to certain sections of the insurance code; amend KRS 342.829 to allow the Kentucky Employers' Mutual Insurance Authority to make a loan to the Kentucky Providers' Mutual Insurance Authority; create new sections of KRS Chapter 411 to establish medical review panels to review malpractice complaints against physicians; permit either party to request a panel no earlier than 20 days after filing of a complaint; provide for membership and selection of panel; provide that the panel's report is admissible as evidence in any action brought by the claimant in a court of law; create a new section of KRS Chapter 454 to require an affidavit by the plaintiff's attorney be served upon the defendant with the summons and complaint in which the plaintiff's attorney states he or she has reviewed the facts of the case with an expert who is of the opinion that one or more of the defendants deviated from the applicable standard of care and caused injury to the plaintiff; create a new section of KRS Chapter 454 to require all lawsuits involving claims of professional negligence against health care providers to be subject to mediation to take place within 90 days after all responsive pleadings have been filed; provide that agreements reached at mediation are legally binding.
HCA (1/Title, S. Nunn) - Make title amendment.
HFA (1, S. Riggs) - Delete references to the authority as an insurer of last resort.
HFA (2/Title, S. Nunn) - Make title amendment.
HFA (3/P, S. Nunn) - Delete all material; attach the provisions of HB 316; additionally permit General Assembly to provide civil immunity for charitable health care providers.
HFA (4, B. Yonts) - Delete all of the provisions relating to medical review panels; and amend KRS 304.15-051 to require medical malpractice insurance rates to be filed with the Commissioner of the Department of Insurance; provide for a notice of filing to be posted on the department's Internet Web site, and permit the commissioner to hold a public hearing on the rates upon receipt of comments or a hearing request if the commissioner determines the hearing to be in the public interest.
(Prefiled by the sponsor(s))
Jan 7-introduced in House; to Banking and Insurance (H)
Feb 5-posted in committee
Feb 19-reported favorably, 1st reading, to Calendar with Committee Substitute, committee amendment (1-title)
Feb 20-2nd reading, to Rules; floor amendments (1) and (3) filed to Committee Substitute, floor amendment (2-title) filed
Feb 21-floor amendment (4) filed to Committee Substitute
Feb 26-recommitted to Appropriations and Revenue (H)