Introduced Version Senate Bill 486 History

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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 Judiciary.]


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 retroactive application.

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:
§55-7B-2. Definitions.
(a) "Board" means the State Board of Risk and Insurance Management.
(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 home, pharmacy 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 agent's employment.
(h) "Medical injury" means injury or death to a patient arising or resulting from the rendering of or failure to render health care.
(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 liability.
(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 article.
(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 retroactive application.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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