A BILL TO BE ENTITLED
AN ACT to establish the North carolina medical malpractice Review board.
The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 90 of the General Statutes is amended by adding a new Article to read:
"Article 1I.
"Medical Malpractice Review Board.
"§ 90‑21.71. Medical Malpractice Review Board established; purpose.
There is established the Medical Malpractice Review Board (Board). The purpose of the Board shall be to review allegations of violations of the standard of health care by health care providers and reach a determination as to whether a violation has likely occurred. 
"§ 90‑21.72. Membership; appointment; qualifications; terms; vacancies; chairperson; compensation. 
(a)	The Board shall consist of 21 members appointed as follows:
(1)	Seven members shall be appointed by the Governor, as follows:
a.	Two health care providers licensed to practice their occupation in this State.
b.	Two attorneys licensed to practice law in this State.
c.	Three members of the public at large who are neither an attorney nor a physician.
(2)	Seven members shall be appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, as follows:
a.	Two health care providers licensed to practice their occupation in this State.
b.	Three attorneys licensed to practice law in this State.
c.	Two members of the public at large who are neither an attorney nor a physician.
(3)	Seven members shall be appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, as follows:
a.	Three health care providers licensed to practice their occupation in this State.
b.	Two attorneys licensed to practice law in this State.
c.	Two members of the public at large who are neither an attorney nor a health care provider and who have no pecuniary interest in a health care facility.
After expiration of initial terms as set forth in subsection (b) of this section, members shall be appointed for three‑year terms commencing on October 1 of the year in which they are appointed. Appointments shall be made by July 1 of the year in which the term commences. Members may be reappointed no more than two times consecutively. In case of death, incapacity, resignation, or vacancy for any other reason, the appointing authority originally appointing the vacating member shall within four weeks of the effective date of the vacancy name a successor to fill the remainder of the term.
(b)	To ensure staggered terms, the following special provisions shall apply to the initial members of the Board:
(1)	The members appointed under sub‑subdivisions (a)(1)a., (a)(2)b., and (a)(3)c. of this section shall serve an initial term of one year.
(2)	The members appointed under sub‑subdivisions (a)(1)b., (a)(2)a., and (a)(3)a. of the section shall serve an initial term of two years.
(c)	The members of the Board shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138‑5.
(d)	All clerical and other services required by the Board shall be supplied by the North Carolina Medical Board/Administrative Office of the Courts.
(e)	The Governor shall appoint one of the members to serve as Chair of the Board. The Chair shall be responsible for appointing panels of seven Board members to review cases brought before the Board. Each panel shall consist of two physicians, two attorneys, two public members, and one other member chosen by the Chair. The Chair may designate a unique panel for each case or may designate standing panels to review multiple cases either randomly assigned or grouped according to criteria selected by the Chair. 
"§ 90‑21.73. Review of medical malpractice actions.
(a)	Definitions. – The following definitions apply in this section:
(1)	Determination. – A finding by the Board based on the greater weight of the evidence that care provided by the health care provider has violated the standard of health care.
(2)	Health care provider. – Defined in G.S. 90‑21.11.
(3)	Medical malpractice action. – Defined in G.S. 90‑21.11.
(4)	Panel. – A group of seven Board members selected as set forth in G.S. 90‑21.72(e). The Board's power to make and issue a Determination under this section is delegated to any panel.
(5)	Standard of health care. – Defined in G.S. 90‑21.12.
(b)	Review Requirement. – Any complaint alleging medical malpractice by a health care provider in failing to comply with the standard of health care shall be dismissed unless the complainant has first presented his claim of violation of the standard of health care to a panel for review and obtained a Determination from the panel as set forth in this section.
(c)	Matters Presented. – The panel shall consider only the issue of whether, based on  the evidence presented by the complainant, it is more likely than not that the health care provider has violated the standard of health care. The panel may consider the evidence set forth in subsection (d) of this section as well as the written arguments of counsel. The panel may decline to release the written arguments of counsel to the opposing counsel upon a finding that the arguments contain confidential or proprietary information.
(d)	Evidence Presented. – The complainant may submit medical records, affidavits of experts, and any other documentary evidence. The panel, the complainant, or the health care provider may procure the attendance of witnesses at depositions following the procedures of G.S. 1A‑1, Rule 45, but may not re‑depose any witness in any civil action arising out of the alleged failure to comply with the standard of health care unless the presiding judge finds good cause exists for allowing a re‑deposition and issues a written order with respect to each witness specifically allowing the re‑deposition. The panel may request any additional documentary evidence from the parties it finds necessary to its deliberations.
(e)	Panel Decision. – If the panel finds by the greater weight of the evidence that the health care provider has violated the standard of health care, it shall issue a written Determination. If the panel finds by the greater weight of the evidence that the health care provider has not violated the standard of health care, or that the existence of a violation is not determinable, it shall not issue a Determination. If the panel determines that the health care provider has failed to participate in good faith in a review proceeding under this section, it shall issue a default Determination which shall have the same effect as a Determination issued after a proceeding. For purposes of this subsection, "failure to participate in good faith" shall include, but not be limited to, the failure to provide information requested by the panel.
(f)	Effect of Determination or Failure to Issue a Determination. – If the panel issues a Determination, then the complainant shall not be taxed costs on the basis of the complainant's failure to obtain a judgment in any subsequent civil action. If the panel declines to issue a Determination, then the complainant shall be taxed with all costs of the health care provider  should the complainant fail to obtain a judgment in any subsequent civil action. For purposes of this subsection, "costs" shall include reasonable attorneys' fees.
(g)	Statutes of Limitation and Repose. – Any statute of limitation or repose applicable in a medical malpractice action shall be tolled from the time a claim is presented to the Board in accordance with this section until the issuance of a Determination regarding that claim by the Board.
(h)	Immunity From Discovery. – The findings and Determination of the Board, as well as any confidential patient information, written arguments of counsel, and other nonpublic information acquired, created, or used in good faith by the Board pursuant to this Article, shall not be subject to discovery or subpoena in any civil action alleging the violation of the standard of health care that was the subject of the Board's findings and Determination. 
SECTION 2.  This act is effective when it becomes law.  Notwithstanding any other provision of this act, initial members of the Medical Malpractice Review Board created by Section 1 of this act shall be appointed by September 1, 2011, and their terms shall commence on October 1, 2011.