House Bill No. 396

Introduced By _______________________________________________________________________________



A Bill for an Act entitled: "An Act generally revising the montana medical legal panel act; adding podiatrists to the montana medical legal panel act; providing for a minimum annual assessment of $15 against health care providers and a 5-year capital contribution by podiatrists; amending sections 27-6-103, 27-6-206, 27-6-302, 27-6-306, 27-6-308, and 27-6-401, MCA; and providing an applicability date."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 27-6-103, MCA, is amended to read:

"27-6-103.   Definitions. As used in this chapter, the following definitions apply:

(1)  "Dentist" means:

(a)  for purposes of the assessment of the annual surcharge, an individual licensed to practice dentistry under the provisions of Title 37, chapter 4, who at the time of the assessment:

(i)  has as the individual's principal residence or place of dental practice the state of Montana;

(ii)  is not employed full-time by any federal governmental agency or entity; and

(iii)  is not fully retired from the practice of dentistry; or

(b)  for all other purposes, a person licensed to practice dentistry under the provisions of Title 37, chapter 4, who at the time of the occurrence of the incident giving rise to the claim:

(i)  was an individual who had as the principal residence or place of dental practice the state of Montana and was not employed full-time by any federal governmental agency or entity; or

(ii)  was a professional service corporation, partnership, or other business entity organized under the laws of any state to render dental services and whose shareholders, partners, or owners were individual dentists licensed to practice dentistry under the provisions of Title 37, chapter 4.

(2)  (a) "Health care facility" means a facility (other than a governmental infirmary but including a university or college infirmary) licensed as a health care facility under Title 50, chapter 5.

(b)  For the purposes of this chapter, a health care facility does not include a chemical dependency facility, an end-stage renal dialysis facility, a home infusion therapy agency, or a residential care facility.

(3)  "Health care provider" means a physician, a dentist, a podiatrist, or a health care facility.

(4)  "Hospital" means a hospital as defined in 50-5-101.

(5)  "Malpractice claim" means a claim or potential claim of a claimant against a health care provider for medical or dental treatment, lack of medical or dental treatment, or other alleged departure from accepted standards of health care that proximately results in damage to the claimant, whether the claimant's claim or potential claim sounds in tort or contract, and includes but is not limited to allegations of battery or wrongful death.

(6)  "Panel" means the Montana medical legal panel provided for in 27-6-104.

(7)  "Physician" means:

(a)  for purposes of the assessment of the annual surcharge, an individual licensed to practice medicine under the provisions of Title 37, chapter 3, who at the time of the assessment:

(i)  has as the individual's principal residence or place of medical practice the state of Montana;

(ii)  is not employed full-time by any federal governmental agency or entity; and

(iii)  is not fully retired from the practice of medicine; or

(b)  for all other purposes, a person licensed to practice medicine under the provisions of Title 37, chapter 3, who at the time of the occurrence of the incident giving rise to the claim:

(i)  was an individual who had as the principal residence or place of medical practice the state of Montana and was not employed full-time by any federal governmental agency or entity; or

(ii)  was a professional service corporation, partnership, or other business entity organized under the laws of any state to render medical services and whose shareholders, partners, or owners were individual physicians licensed to practice medicine under the provisions of Title 37, chapter 3.

(8) "Podiatrist" means:

(a) for purposes of the assessment of the annual surcharge, an individual licensed to practice podiatry under the provisions of Title 37, chapter 6, who at the time of the assessment:

(i) has as the individual's principal residence or place of podiatric practice the state of Montana;

(ii) is not employed full-time by any federal governmental agency or entity; and

(iii) is not fully retired from the practice of podiatry; or

(b) for all other purposes, a person licensed to practice podiatry under the provisions of Title 37, chapter 6, who at the time of the occurrence of the incident giving rise to the claim:

(i) was an individual who had as the principal residence or place of podiatric practice the state of Montana and was not employed full-time by any federal governmental agency or entity; or

(ii) was a professional service corporation, partnership, or other business entity organized under the laws of any state to render podiatric services and whose shareholders, partners, or owners were individual podiatrists licensed to practice podiatry under the provisions of Title 37, chapter 6."



Section 2.  Section 27-6-206, MCA, is amended to read:

"27-6-206.   Funding. (1) There is a pretrial review fund to be administered by the director exclusively for the purposes stated in this chapter. The fund and any income from it must be held in trust, deposited in an account, and invested and reinvested by the director with the prior approval of the director of the Montana medical association. The fund may not become a part of or revert to the general fund of this state but is open to auditing by the legislative auditor.

(2) (a)  To create the fund, an annual surcharge or assessment must be levied on all health care providers. The amount of the assessment must be set annually by the director and must be apportioned among physicians, dentists, podiatrists, hospitals, and other health care providers by group. For Except as provided in subsection (2)(c), for the group of all physicians, the group of all dentists, the group of all podiatrists, the group of all hospitals, and the group of all other health care facilities, the amount of the assessment must be proportionate to the respective percentage of total health care providers brought before the panel that each group constitutes. The total number and group of health care providers brought before the panel must be determined from the annual report of the panel for the years preceding the year of assessment.

(b) The Except as provided in subsection (2)(c), the amount of the assessment for the group of all:

(i) hospitals must be proportionately assessed against each hospital on the basis of each hospital's total number of licensed hospital beds, whether used or not, as reflected in the most recent compilation of the department of public health and human services. The amount of the assessment for the group of all;

(ii) physicians must be equally assessed against all physicians. The amount of the assessment for the group of all;

(iii) dentists must be equally assessed against all dentists.;

(iv) podiatrists must be equally assessed against all podiatrists; and

The amount of the assessment for the group of all

(v) other health care facilities must be equally assessed against all other health care facilities.

(c) The annual amount of the assessment levied against each health care provider may not be less than $15.

(d) Surplus funds, if any, above the amount required for the annual administration of the chapter must be retained by the director and used to finance the administration of this chapter in succeeding years, in which event the director shall reduce the annual assessment in subsequent years to not less than $15 for each health care provider, commensurate with the proper administration of this chapter.

(3)  The annual surcharge must be paid on or before the date that physicians' and dentists' annual registration or renewal fees are due under 37-3-313 and 37-4-307 April 1 of each year. All unpaid assessments bear a late charge fee equal to the judgment rate of interest. The late charge fee is part of the annual surcharge. The director has the same powers and duties in connection with the collection of and failure to pay the annual surcharge as the department of commerce has under 37-3-313 and 37-4-307 in connection with physicians' and dentists' annual registration or renewal fees. The panel may collect the annual surcharge by an action at law."



Section 3.  Section 27-6-302, MCA, is amended to read:

"27-6-302.   Contents of application -- waiver of confidentiality of medical and dental records. The application shall must contain the following:

(1)  a statement in reasonable detail of the elements of the health care provider's conduct which that are believed to constitute a malpractice claim, the dates on which the conduct occurred, and the names and addresses of all physicians, dentists, podiatrists, and hospitals having contact with the claimant and all witnesses;

(2)  a statement authorizing the panel to obtain access to all medical, dental, podiatric, and hospital records and information pertaining to the claim and, for the purposes of its consideration of this matter only, waiving any privilege as to the contents of those records. Nothing in that The statement may not in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court."



Section 4.  Section 27-6-306, MCA, is amended to read:

"27-6-306.   Health care provider's appearance and answer -- waiver of confidentiality of records. (1) If a health care provider involved chooses to retain legal counsel, his the health care provider's attorney shall informally enter his the health care provider's appearance with the director.

(2)  The health care provider shall answer the application for review and shall submit a statement authorizing the panel to inspect all medical, dental, podiatric, and hospital records and information pertaining to the application and, for the purposes of such inspection only, waiving any privilege as to the contents of those records. Nothing in the The statement waives does not waive that privilege for any other purpose."



Section 5.  Section 27-6-308, MCA, is amended to read:

"27-6-308.   Director to furnish panel members with documents. At least 10 days prior to the hearing, the director shall furnish to each panel member copies of all claims, briefs, medical, podiatric, or dental records, and other documents that the director considers necessary."



Section 6.  Section 27-6-401, MCA, is amended to read:

"27-6-401.   Composition of panel. (1) Those eligible to sit on the panel are health care providers licensed pursuant to Montana law and residing in Montana and the members of the state bar of Montana. Six panel members shall sit in review of each case. Three panel members who are physicians and three panel members who are attorneys shall sit in review of each case in which the claim is heard only against one or more physicians. Three panel members who are dentists and three panel members who are attorneys shall sit in review of each case in which the claim is heard only against one or more dentists. Three panel members who are podiatrists and three panel members who are attorneys shall sit in review of each case in which the claim is heard only against one or more podiatrists. If the claim is heard only against one or more health care facilities, two of the panel members must be administrators of the same type of health care facility or facilities, one panel member must be a physician, and three panel members must be attorneys.

(2)  In all other cases, two of the panel members must be physicians, one panel member must be an administrator of the same type of health care facility, and three panel members must be attorneys, except that when a claim is heard against a dentist, a dentist must be substituted for one of the physicians on the panel and when a claim is heard against a podiatrist, a podiatrist must be substituted for one of the physicians on the panel."



NEW SECTION. Section 7.  Podiatric contributions to fund -- delayed implementation -- capital contribution. The director may not levy an annual assessment against or collect an annual assessment from podiatrists until 1998. For the years 1998 through 2002, podiatrists shall pay an additional capital contribution of $50 to the fund in addition to the amount of the annual assessment computed under 27-6-206.



NEW SECTION. Section 8.  Applicability. [This act] applies to causes of action arising on or after [the effective date of this act].

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