H. B. 3062
(By Mr. Speaker, Mr. Kiss, and Delegates Amores,
Michael, Cann, Beane, Craig and Morgan)
[Introduced March 29, 2001; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto two new articles, designated articles seven-e and
seven-f, all relating to providing a mandatory prelitigation
screening for medical professional liability claims and
establishing panels for screening and mediation and to require
a health-care provider affidavit in support of civil action,
and a new article; and providing a set-off or reimbursement
for collateral sources covering health care costs in medical
professional liability actions.
Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto two new articles, designated articles seven-e and seven-f,
all to read as follows:
ARTICLE 7E.
MANDATORY PRELITIGATION SCREENING AND MEDIATION PANELS.
§55-7E-1. Legislative findings; p
urpose and definitions.
(a)
Legislative findings. -- The Legislature finds that the
volume of medical professional liability claims and the need to
improve the quality of medical care is a statewide issue. The
Legislature declares that the citizens of this state are entitled
to the best medical care and facilities available, and that
health-care providers offer an essential and basic service which
requires that the public policy of this state encourage and
facilitate the provision of such service to our citizens. The
possibility of injury or death actually caused by negligent conduct
is an important state interest which requires protection of the
public served by health-care providers. This state's civil justice
system is an essential component of the state interest in providing
adequate and reasonable compensation to those persons who suffer
from injury or death as a result of professional negligence.
Liability insurance is a key part of our civil justice system,
affording compensation to the injured while fulfilling the need of
fairness in spreading the cost of the risk of injury.
Professional medical liability insurers have left or are
leaving the state due to the volume of medical professional
liability claims and subsequent costs. Lengthy litigation and
nonmeritorious claims increase the cost of litigation and
professional medical liability insurance. It is the Legislature's duty and responsibility to balance the rights of this state's
citizens to adequate and reasonable compensation with the broad
public interest of medical services provided by qualified
health-care providers who can themselves obtain the protection of
reasonably priced and extensive liability coverage. With the
increase in insurance coverage costs and diminishing coverage,
health-care providers and the injured citizens of this state are
without the full benefit of professional medical liability
insurance coverage. Therefore, the purpose of this statute is to
provide a comprehensive resolution to factors which the Legislature
finds must be addressed and which rationally relates to the
accomplishment of the purposes set forth above, to identify claims
of medical professional liability which merit compensation and to
encourage early resolution of those claims prior to commencement of
a lawsuit, and to identify claims of medical professional liability
which do not merit compensation and to encourage early withdrawal
or dismissal of nonmeritorious claims.
(b)
Purpose. -- The purpose of mandatory prelitigation
screening and mediation panels is to:
(1) Identify claims of medical professional liability which
merit compensation and to encourage early resolution of those
claims prior to commencement of a lawsuit; and
(2) Identify claims of medical professional liability which do
not merit compensation and to encourage early withdrawal or dismissal of nonmeritorious claims.
(b)
Definitions. -- As used in this article, unless the
context otherwise indicates, the following terms have the following
meanings:
(1) A "claim of medical professional liability" means any
written notice of claim served pursuant to the provisions of
section three of this article against health-care providers or any
employee or agent thereof acting within the scope of their
authority.
(2) "Health-care providers" means those persons defined in
article seven-b of this chapter.
§55-7E-2. Formation and procedure.
(a) Creation of panel lists.
(1) The chief justice of the supreme court of appeals of West
Virginia shall provide to the clerk of the supreme court of appeals
of West Virginia the names of retired justices and judges, persons
with judicial experience and other qualified persons whom the court
recommends to serve on screening panels under this article. The
clerk of the supreme court of appeals of West Virginia shall place
these names on a list from which the chief judge of the circuit
court where the claim is filed will choose a panel chair.
(2) The clerk of the supreme court of appeals of West Virginia
shall also maintain lists of health-care providers and attorneys
whose names have been submitted by the respective professional associations to serve on screening panels under this article.
(b)
Selection of panel members; compensation. -- Screening
panel members shall be selected as follows:
(1) Upon receipt of a notice of claim under the provisions of
section three of this article, the clerk of the circuit court who
receives the notice shall notify the chief judge of the circuit
court. The chief judge shall choose a retired justice or judge, a
person with judicial experience or other qualified person from the
list maintained by the clerk of the supreme court of appeals of
West Virginia to serve as chair of the panel to screen the claim.
If at any time a chair chosen under this subdivision is unable or
unwilling to serve, the chief judge shall appoint a replacement
following the procedure in this paragraph for the initial
appointment of a chair. Persons other than retired justices and
judges or those with judicial experience may be appointed as chair
based on appropriate trial experience. If the chief judge seeks to
appoint as chair a person who is not a retired justice or judge or
does not have judicial experience, each side is entitled to
exercise one challenge to the appointment of a chair by the chief
judge.
(2) Upon notification of the chief judge's choice of chair,
the clerk who received the notice of claim under the provisions of
section three of this article shall notify that person and provide
that person with a copy of the lists of health-care providers and attorneys maintained by the clerk of the supreme court of appeals
of West Virginia under the provisions of subsection (a) of this
section. The chair shall choose from those lists two or three
additional panel members as follows:
(A) The chair shall choose one attorney;
(B) The chair shall choose one health-care provider. Whenever
possible, the chair shall choose a provider who practices in the
specialty or profession of the person accused of medical
professional liability but who is not an economic competitor;
(C) Where the claim involves more than one person accused of
medical professional liability the chair may choose a fourth panel
member who is a health-care provider. If possible, the chair shall
choose a provider in the specialty or profession of a person
accused; and
(D) When agreed upon by all the parties, the list of available
panel members may be enlarged in order to select a panel member who
is agreed to by the parties but who is not on the clerk's list.
(3) The chief justice of the supreme court shall establish the
compensation of the panel chair. Other panel members shall serve
without compensation. Reasonable expenses not to exceed one
hundred dollars per diem may be submitted to the supreme court for
payment.
(4) The clerk of the circuit court in the judicial circuit in
which the notice of claim is filed under the provisions of section three of this article shall, with the consent of the chief judge,
provide clerical and other assistance to the panel chair.
(c)
Challenges; replacements. -- If any panel member other
than the chairman is unable or unwilling to serve in any matter or
is challenged for cause by any person who is a party to a
proceeding before a panel, the party challenging the member must
request a replacement from the lists maintained by the clerk of the
supreme court of appeals of West Virginia under the provisions of
subsection (a) of this section, chosen by the chairman who shall so
notify the parties. There may only be challenges for cause
allowed. The chairman shall inquire as to any bias on the part of
a panel member or as requested by any party.
If the chairman is challenged for cause by any person who is
a party to the proceeding before a panel, the party challenging
shall notify the chief judge of the circuit court. If the chief
judge finds cause for the challenge, the chief judge shall replace
the chairman following the procedure for the initial appointment.
(d)
Subpoena power. -- The panel, through the chairman, has
the same subpoena power as exists for a circuit court judge. The
chairman has sole authority, without requiring the agreement of
other panel members, to issue subpoenas.
(e)
Discovery. -- The chair, upon application of a party, may
permit limited, reasonable discovery. The chair may rule on
requests regarding discovery, or may allow the parties to seek a ruling in the circuit court under the provisions of subsection (h)
of section three of this article.
§55-7E-3. Submission of claims.
(a)
Notice of claim. -- A person may commence a claim for
medical professional liability by:
(1) Serving a written notice of claim, setting forth, under
oath, the medical professional liability alleged and the nature and
circumstances of the injuries and damages alleged, on the person
accused of medical professional liability. The notice of claim
must be filed with the circuit court within twenty days after
completion of service; or
(2) Filing a written notice of claim, setting forth, under
oath, the medical professional liability alleged and the nature and
circumstances of the injuries and damages alleged, with the circuit
court. The claimant also must serve the notice of claim on the
person accused of medical professional liability. The return of
service must be filed with the court within ninety days after
filing the notice of claim.
(3) Service must be made in accordance with the West Virginia
rules of civil procedure, rule 4.
(b)
Jurisdiction. --
Claims may be filed only in any court
which would have jurisdiction over the parties to the lawsuit
following prelitigation screening and mediation.
(c)
Confidentiality. -- The notice of claim and all other documents filed with the court in the action for medical
professional liability during the prelitigation screening process
are confidential.
(d)
Fee. -- At the time of filing notice of claims with the
court, the claimant shall pay to the clerk a filing fee of two
hundred dollars for each notice filed.
(e)
Appearance; filing fee. -- Within twenty days of receipt
of notice of service upon the clerk, the person or persons accused
of medical professional liability in the notice, or that person's
representative, must file a notice of appearance with a copy to the
claimant.
(f)
Waiver. -- Any person making claim may, at the time of
filing, apply to the chair of the panel for a waiver of the filing
fee. The chair must grant the waiver if the party is indigent. In
determining the indigency of the party, the chair shall consider
the factors contained in the rules governing the determination of
indigency as are used to determine appointment of counsel pursuant
to the code of West Virginia, one thousand nine hundred thirty-one,
as amended.
(g)
Filing of records; time for hearing; extensions. --
Within twenty days of entry of appearance, the person or persons
accused or their representative must contact the claimant's counsel
or claimant, if there be no counsel, and by agreement shall
designate a timetable for filing all the relevant medical and provider records necessary for a determination by the panel and
completing discovery. Within sixty days of the entry of
appearance, if the parties are unable to agree on a timetable, the
claimant shall notify the chair of the panel. The chair shall then
establish a timetable for the filing of all relevant records and
reasonable discovery, which must be filed at least thirty days
before any hearing date. Depositions of persons other than the
parties and the experts designated by the parties may not be taken
except as permitted by the chair upon the request of a party. The
hearing may not be later than six months from the service of the
notice of claim upon the clerk, except when the time period has
been extended by the panel member chair in accordance with the
provisions of this article.
(h)
Lawsuits. -- The pretrial screening may be bypassed if
all parties agree upon a resolution of the claim by lawsuit. All
parties to a claim may, by written agreement, submit a claim to the
binding determination of the panel, either prior to or after the
commencement of a lawsuit. Both parties may agree to bypass the
panel and commence a lawsuit for any reason, or may request that
certain preliminary legal affirmative defenses or issues be
litigated prior to submission of the case to the panel. The panel
has no jurisdiction to hear or decide, absent the agreement of the
parties, dispositive legal affirmative defenses and comparative
negligence. The panel chair may require the parties to litigate, by motion, dispositive legal affirmative defenses in the circuit
court prior to submission of the case to the panel. Any such
defense, as well as any motion relating to discovery that the panel
chair has chosen not to rule on may be presented, by motion, in
circuit court without the necessity of a complaint having first
been filed. The chief judge shall assign a judge to hear and rule
upon matters brought to the court during the prelitigation process.
(i)
Combining hearings. -- Except as otherwise provided in
this section, there shall be one combined hearing or hearings for
all claims under this section arising out of the same set of facts.
Where there is more than one person accused of professional
negligence against whom a notice of claim has been filed based on
the same facts, the parties may, upon agreement of all parties,
require that hearings be separated. The chairman may, for good
cause, order separate hearings.
(j)
Extensions of time. -- All requests for extension of time
under this subdivision must be made to the panel chair. The chair
may extend any time period under this subdivision for good cause,
except that the chair may not extend any time period that would
result in the hearing being held more than one year from the filing
of notice of claim upon the clerk unless good cause is shown.
(k)
Dismissal. -- Cases pending before the panels may be
dismissed as follows:
(1) Voluntary dismissal will be governed as follows:
(A) Any action before the panel may be dismissed by the
plaintiff by filing a notice of dismissal at any time prior to the
appointment of the panel or by filing a stipulation of dismissal
signed by all parties who have appeared in the action. Unless
otherwise stated in the notice of dismissal, stipulation or order,
the dismissal is without prejudice. A plaintiff must refile and
reserve a notice of claim to reinstitute a medical professional
liability claim following a dismissal under this section.
(B) Except as provided in subdivision (A) of this subsection,
an action may not be dismissed on the plaintiff's motion except on
order of the chair of the panel and on terms and conditions the
chair deems proper.
(2) Involuntary dismissal is governed as follows:
(A) On failure of the plaintiff to prosecute or to comply with
rules or any order of the chair, and on motion by the chair or any
party, after notice to all parties has been given and the party
against whom sanctions are proposed has had the opportunity to be
heard and show good cause, the chair may order appropriate
sanctions, which may include dismissal of the case. If any
sanctions are imposed, the chair shall state the sanctions in
writing and include the grounds for the sanctions.
(B) Unless the chair or the panel in an order for dismissal
specifies otherwise, a dismissal under this subdivision is with
prejudice for purposes of proceedings before the panel. A dismissal with prejudice is deemed to be the equivalent of a
finding for the defendant on all issues before the panel.
(l)
Default. -- In addition to the sanctions set out in
subsection (k) of this section, the following sanctions may be
imposed against a defendant in a case pending before the panel:
(1) On failure of a defendant to comply with the rules or any
order of the chair, and on motion by the chair or any party, after
notice to all parties has been given and the party against whom
sanctions are proposed has had the opportunity to be heard and show
good cause, the chair may order appropriate sanctions, which may
include default. If any sanctions are imposed, the chair shall
state the sanctions in writing and include the grounds for the
sanctions;
(2) Unless the chair or the panel in its order for default
specifies otherwise, a default under this paragraph is deemed to be
the equivalent of a finding against the defendant on all issues
before the panel.
§55-7E-4. Hearing.
(a)
Procedure. --
(1) The claimant or a representative of the claimant must
present the case before the panel. The person accused of medical
professional liability or that person's representative must make a
responding presentation. Wide latitude must be afforded the
parties by the panel in the conduct of the hearing including, but not limited to, the right of examination and cross-examination by
attorneys. Depositions are admissible whether or not the person
deposed is available at the hearing. The chair shall make all
procedural rulings and those rulings are final. The West Virginia
rules of evidence do not apply. Evidence must be admitted if it is
the kind of evidence upon which reasonable persons are accustomed
to rely in the conduct of serious affairs. The panel shall make
such findings upon such evidence as is presented at the hearing,
the records and any expert opinions provided by or sought by the
panel or the parties.
(2) After presentation by the parties, as provided in this
section, the panel may request from either party additional facts,
records or other information to be submitted in writing or at a
continued hearing, which continued hearing must be held as soon as
possible. The continued hearings must be attended by the same
members of the panel who have sat on all prior hearings on the same
claim, unless otherwise agreed by all parties.
(b)
Record; hearings. -- The panel shall maintain an audio-
tape record of the proceedings. Except as provided in section
eight of this article, the record may not be made public and the
hearings may not be public without the consent of all parties.
(c)
Settlement; mediation. -- The chair of the panel shall
attempt to mediate any differences of the parties and attempt
resolution by settlement if the parties consent, before proceeding to findings.
(d)
Failure to comply. -- Failure of a party, without good
cause, to attend a properly scheduled hearing to participate in
authorized discovery, or to otherwise substantially comply with
this subdivision, must result in a finding made by a majority of
the panel against that party and that finding has the same effect
as a finding against that party under the provision of section
three of this article.
§55-7E-5. Findings by panel.
(a)
Negligence and causation. -- At the conclusion of the
presentation, the panel shall make its findings in writing within
forty-five days by answering the following questions:
(1) Whether the acts or omissions complained of, in the
opinion of the panel, constitute a deviation from the applicable
standard of care by the health-care provider charged with that
care;
(2) Whether the acts or omissions complained of, in the
opinion of the panel, proximately caused the injury complained of;
and
(3) If negligence on the part of the health-care provider is
found, whether any negligence on the part of the patient was equal
to or greater than the negligence on the part of the provider.
(b)
Standard of proof. -- The standard of proof used by the
panel shall be:
(1) The plaintiff must prove negligence and proximate
causation by a preponderance of the evidence; and
(2) The defendant must prove comparative negligence by a
preponderance of the evidence.
§55-7E-6. Notification and effect of findings.
The panel's findings, signed by the panel members, indicating
their vote, shall be served by registered or certified mail on the
parties within seven days of the date of the findings. The
findings, notice of claim and record of the hearing shall be
preserved until thirty days after final judgment or the case is
finally resolved, after which time it shall be destroyed. All
medical and provider records shall be returned to the party
providing them to the panel.
§55-7E-7. Confidentiality and admissibility.
(a)
Proceedings before panel confidential. -- Except as
provided in this section and section eight of this article, all
proceedings before the panel, including its final determinations,
must be treated in every respect as private and confidential by the
panel and the parties to the claim.
(1) The findings and other writings of the panel and any
evidence and statements made by a party or a party's representative
during a panel hearing are not admissible and may not otherwise be
submitted or used for any purpose in a subsequent court action and
may not be publicly disclosed, except that:
(A) Any testimony or writings made under oath may be used in
subsequent proceedings for purposes of impeachment; and
(B) The party who made the statement or presented the evidence
may agree to the submission, use or disclosure of that statement or
evidence.
(2) If the panel findings as to both the questions under the
provisions of subdivisions (1) and (2), subsection (a), section
five of this article are unanimous and unfavorable to the person
accused of medical professional liability, the findings are
admissible in any subsequent court action for medical professional
liability against that person by the claimant based on the same set
of facts upon which the notice of claim was filed.
(3) If the panel findings as to any question are unanimous and
unfavorable to the claimant pursuant to the provision of section
five of this article, the findings are admissible in any subsequent
court action for medical professional liability against the person
accused of medical professional liability by the claimant based on
the same set of facts upon which the notice of claim was filed.
The confidentiality provisions of this section do not apply if
the findings were influenced by fraud.
(b)
Deliberations, discussions and testimony privileged and
confidential. -- The deliberations and discussions of the panel and
the testimony of any expert, whether called by any party or the
panel, shall be privileged and confidential, and no such person may be asked or compelled to testify at a later court proceeding
concerning the deliberations, discussions, findings or expert
testimony or opinions expressed during the panel hearing, unless by
the party who called and presented that nonparty expert who
subsequently uses the expert at trial and thereby waives the
privilege and confidentiality, except such deliberation, discussion
and testimony as may be required to prove an allegation of fraud.
(c)
Discovery; subsequent court action. -- The West Virginia
rules of civil procedure govern discovery conducted under this
article. The chair has the same authority to rule upon discovery
matters as a circuit court judge. In a subsequent circuit court
action, all discovery conducted during the prelitigation screening
panel proceedings is deemed discovery conducted as a party of that
court action; however, the rulings of the chair as to prelitigation
discovery are not binding upon the parties in the subsequent
litigation.
§55-7E-8. Effect of findings by panel.
A unanimous finding by the panel of any claim under this
article shall be implemented as follows:
(a)
Payment of claim; determination of damages. -- If the
unanimous findings of the panel as to the provisions of section
five of this article are in the affirmative, the person accused of
medical professional liability must promptly enter into
negotiations to pay the claim or admit liability. If liability is admitted, the claim may be submitted to the panel, upon agreement
of the claimant and person accused, for determination of damages.
If suit is brought to enforce the claim, the findings of the panel
are admissible as provided in section seven of this article.
(b)
Release of claim without payment. -- If the unanimous
findings of the panel as to the provisions of either subsection
(a) or (b), section five of this article are in the negative, the
claimant must release the claim or claims based on the findings
without payment or be subject to the admissibility of those
findings in a subsequent court action based on the same set of
facts upon which the notice of claim was filed.
§55-7E-9. Statute of limitations.
The applicable statute of limitations concerning actions for
medical professional liability is tolled from the date upon which
notice of claim is served or filed in the circuit court until
thirty days following the day upon which the claimant receives
notice of the findings of the panel.
§55-7E-10. Notice of claim before suit.
(a)
Commencement of action. -- No action for medical
professional liability may be commenced until the plaintiff has:
(1) Served and filed written notice of claim in accordance
with the provisions of section three of this article;
(2) Complied with the provisions of this article;
(3) Determined that the thirty-day time period provided in section nine of this article has expired; and,
(4) Filed, or if represented by an attorney had his attorney
file, with the complaint an affidavit of merit signed by a
health-care provider who the plaintiff's attorney reasonably
believes meets the requirements for an expert witness under the
provisions of article seven-b of this chapter. The affidavit of
merit shall certify that the health-care provider has reviewed the
complaint and all medical records supplied him by the plaintiff's
attorney concerning the medical allegations contained in the
complaint and shall contain a statement of each of the following:
(A) The applicable standard of practice or care; (B) The
health-care provider's opinion that the applicable standard of
practice or care was breached by the health-care provider receiving
or to receive the complaint; (C) The actions that should have been
taken or were omitted by the health-care provider in order to have
complied with the applicable standard of practice or care; (D) The
manner in which the breach of the standard of practice or care was
the proximate cause of the injury alleged in the complaint; and (E)
The health-care provider's qualifications which qualify him to
render opinions (A) through (D).
(b) Upon motion of a party for good cause shown, the court in
which the complaint is filed may grant the plaintiff an additional
thirty days in which to file the affidavit required under this
section.
ARTICLE 7F. COLLATERAL SOURCES.
§55-7F-1. Reduction in compensatory damages for collateral source
payments.
Notwithstanding any other provision of this code, in medical
professional liability actions, the total amount of compensatory
damages awarded to a plaintiff under such action must be reduced,
in accordance with the provision of section two of this article, by
any collateral source payments made or to be made to the plaintiff.
§55-7F-2. Post-trial determination of reduction in compensatory
damages.
The reduction in compensatory damages required under section
one of this article shall be determined by the court in a
post-trial proceeding before the entry of the final judgment order.
In that proceeding, the court shall allow the introduction of
evidence of collateral source payments which have already been made
or which are reasonably certain to be made to a plaintiff as
compensation for the same damages for which recovery is sought in
the action. In addition, a plaintiff who has received or is to
receive collateral source payments may introduce evidence of any of
the following: (1) Any amount which the plaintiff has paid or
contributed to secure his right to any such collateral source
payments; (2) that any recovery by the plaintiff is subject to a
lien by a collateral source; (3) that a provider of such collateral
source payments has a statutory right of recovery against the plaintiff for reimbursement of such payments; or (4) that the
provider of such collateral source payments has a right of
subrogation to the rights of the plaintiff.
After considering the evidence, the court shall make a
determination as to the amount by which a plaintiff's compensatory
damages as awarded by the jury shall be reduced by any such
collateral source payments. The court shall make such other orders
as justice requires for satisfaction or compromise of any liens or
rights of subrogation. Thereafter, a final order shall be entered
which reflects the compensatory damage award as modified by the
collateral sources reduction.
NOTE: The purpose of this bill is to provide a procedure for
mandatory prelitigation screening for medical professional
liability claims;
establishing panels for screening and mediation
requiring a health-care provider affidavit in support of civil
action; and requiring a set-off or reimbursement for collateral
sources covering health care costs in medical professional
liability actions.
§§55-7E and 7F are new; therefore, strike-throughs and
underscoring have been omitted.
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