Senate Bill No. 486
(By Senators Prezioso and Unger)
[Introduced March 8, 2005; referred to the Committee
on Health and Human Resources; and then to the Committee on the
A BILL to amend and reenact §55-7B-2 and §55-7B-10 of the Code of
West Virginia, 1931, as amended, all relating to medical
professional liability generally; including pharmacists and
pharmacies in the definitions of "health care provider" and
"health care facility" respectively; and providing for
Be it enacted by the Legislature of West Virginia:
That §55-7B-2 and §55-7B-10 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
(a) "Board" means the State Board of Risk and Insurance
(b) "Collateral source" means a source of benefits or
advantages for economic loss that the claimant has received from:
(1) Any federal or state act, public program or insurance which provides payments for medical expenses, disability benefits,
including workers' compensation benefits, or other similar
benefits. Benefits payable under the Social Security Act are not
considered payments from collateral sources except for Social
Security disability benefits directly attributable to the medical
injury in question;
(2) Any contract or agreement of any group, organization,
partnership or corporation to provide, pay for or reimburse the
cost of medical, hospital, dental, nursing, rehabilitation, therapy
or other health care services or provide similar benefits;
(3) Any group accident, sickness or income disability
insurance, any casualty or property insurance (including automobile
and homeowners' insurance) which provides medical benefits, income
replacement or disability coverage, or any other similar insurance
benefits, except life insurance, to the extent that someone other
than the insured, including the insured's employer, has paid all or
part of the premium or made an economic contribution on behalf of
the plaintiff; or
(4) Any contractual or voluntary wage continuation plan
provided by an employer or otherwise, or any other system intended
to provide wages during a period of disability.
(c) "Consumer price index" means the most recent consumer
price index for all consumers published by the United States
Department of Labor.
(d) "Emergency condition" means any acute traumatic injury or
acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the
precipitation of significant complications or disabilities,
impairment of bodily functions, or, with respect to a pregnant
woman, a significant risk to the health of the unborn child.
(e) "Health care" means any act or treatment performed or
furnished, or which should have been performed or furnished, by any
health care provider for, to or on behalf of a patient during the
patient's medical care, treatment or confinement.
(f) "Health care facility" means any clinic, hospital, nursing
or assisted living facility, including personal care
home, residential care community and residential board and care
home, or behavioral health care facility or comprehensive community
mental health/mental retardation center, in and licensed by the
State of West Virginia and any state operated institution or clinic
providing health care.
(g) "Health care provider" means a person, partnership,
corporation, professional limited liability company, health care
facility or institution licensed by, or certified in, this state or
another state, to provide health care or professional health care
services, including, but not limited to, a physician, osteopathic
physician, hospital, dentist, registered or licensed practical
nurse, optometrist, podiatrist, chiropractor, physical therapist,
psychologist, emergency medical services authority or agency,
pharmacy or pharmacist
or an officer, employee or agent thereof
acting in the course and scope of such officer's, employee's or
(h) "Medical injury" means injury or death to a patient
arising or resulting from the rendering of or failure to render
(i) "Medical professional liability" means any liability for
damages resulting from the death or injury of a person for any tort
or breach of contract based on health care services rendered, or
which should have been rendered, by a health care provider or
health care facility to a patient.
(j) "Medical professional liability insurance" means a
contract of insurance or any actuarially sound self-funding program
that pays for the legal liability of a health care facility or
health care provider arising from a claim of medical professional
(k) "Noneconomic loss" means losses, including, but not
limited to, pain, suffering, mental anguish and grief.
(l) "Patient" means a natural person who receives or should
have received health care from a licensed health care provider
under a contract, expressed or implied.
(m) "Plaintiff" means a patient or representative of a patient
who brings an action for medical professional liability under this
(n) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
§55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first
extraordinary session of the Legislature, 1986, shall be effective at the same time that the provisions of Enrolled Senate Bill 714,
enacted during the regular session, 1986, become effective, and the
provisions of said House Bill 149 shall be deemed to amend the
provisions of Enrolled Senate Bill 714. The provisions of this
article shall not apply to injuries which occur before the
effective date of this said Enrolled Senate Bill 714.
The amendments to this article as provided in House Bill 601,
enacted during the sixth extraordinary session of the Legislature,
two thousand one, apply to all causes of action alleging medical
professional liability which are filed on or after the first day of
March, two thousand two.
(b) The amendments to this article provided in Enrolled
Committee Substitute for House Bill No. 2122 during the regular
session of the Legislature, two thousand three, apply to all causes
of action alleging medical professional liability which are filed
on or after the first day of July, two thousand three.
(c) Amendments made to section two of this article during the
two thousand five regular session of the Legislature are effective
retroactively to the date of the effective date of chapter 106,
Acts of the Legislature, one thousand nine hundred eighty six.
NOTE: The purpose of this bill is to amend the medical
professional liability statute by including pharmacists and
pharmacies in the definitions of "health care provider" and "health
care facility", respectively. The bill also provides for
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would