SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home
Introduced Version Senate Bill 535 History

   |  Email
Key: Green = existing Code. Red = new code to be enacted


Senate Bill No. 535


(By Senators Sprouse, Boley, Minear, Deem, McKenzie and Facemyer)

[Introduced March 20, 2001; referred to the

Committee on the Judiciary; and then to the Committee on Finance.]





A BILL to amend article twenty-seven, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirty-six; to amend and reenact sections one, two and eight, article seven-b, chapter fifty-five of said code; and to further amend said article by adding thereto eleven new sections, designated sections nine-a, nine-b, nine-c, nine- d, nine-e, nine-f, nine-g, nine-h, nine-i, nine-j and nine- k, all relating to providing incentives for the retention of certain health care providers in this state; the "West Virginia Medical Access Enhancement Act"; phasing out the health care provider tax imposed on gross receipts of services performed in this state by chiropractors, dentists, nurses, opticians, optometrists, physicians, podiatrists, psychologists and therapists; reaffirming the intent of the Legislature to limit the maximum amount of noneconomic damages recoverable in a medical professional liability action to not more than one million dollars; providing for a remittitur of judgment for damage awards in excess of the limit; providing for nonbinding arbitration of certain medical professional liability claims against a health care provider; legislative findings and declaration of purpose; defining the term "medical injury"; providing for exclusiveness of arbitration procedures applicable to claims for damages of seventy-five thousand dollars or more; applicability of state court rules; creating the health claims arbitration office; appointment, duties, powers and compensation of director; lists of qualified persons willing to serve as arbitrators; designating categories and qualifications thereof; creating the health care arbitration fund as a special revenue fund; purpose, administration and use of fund; providing fees for filing claims and responses to claims; procedures for the filing of claims; appointment of arbitrators; arbitrators' immunity from suit; requirements and procedures for filing a certificate of a qualified expert by parties; powers of the arbitration panel and chairperson; power of the panel chairperson to administer oaths to witnesses and to issue subpoenas; enforcement of subpoenas; venue; notice of hearing; procedure for arbitration of claim; issues of law to be determined by panel chairperson and issues of fact to be determined by panel; determination of liability; determination, itemization and apportionment of damages; application to correct or modify award; procedure for confirmation of award; confirmation of award final and binding upon the parties; judicial review; procedure for judicial review; providing a procedure for waiver of arbitration before claim heard; waiver of arbitration after filing of certificate of qualified expert; procedure.

Be it enacted by the Legislature of West Virginia:
That article twenty-seven, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirty-six; that sections one, two and eight, article seven-b, chapter fifty-five of said code be amended and reenacted; and that said article be further amended by adding thereto eleven new sections, designated sections nine-a, nine-b, nine-c, nine-d, nine-e, nine-f, nine-g, nine-h, nine-i, nine-j and nine-k, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-36. Phase out and elimination of taxes on services of individual practitioners.
Effective the first day of July, two thousand one, the tax imposed under sections five, six, twelve, thirteen, fourteen, seventeen, eighteen and nineteen of this article shall be one and thirty-0one hundredths percent of gross receipts derived by the taxpayer from furnishing the services referred to in the aforesaid sections, and the tax imposed under section sixteen of this article shall be one and one-half percent of such gross receipts.
Effective the first day of July, two thousand two, the tax imposed under sections five, six, twelve, thirteen, fourteen, seventeen, eighteen and nineteen of this article shall be eighty- seven one hundredths percent of gross receipts derived by the taxpayer from furnishing the services in this state referred to in the aforesaid sections, and the tax imposed under section sixteen of this article shall be one-half percent of such gross receipts.
Effective the first day of July, two thousand three, the tax imposed under sections five, six, twelve, thirteen, fourteen, seventeen, eighteen and nineteen of this article shall be forty- four one hundredths percent of gross receipts derived by the taxpayer from furnishing the services in this state referred to in the aforesaid sections, and the tax imposed under section sixteen of this article shall be one-half percent of such gross receipts.
Effective the first day of July, two thousand four, the tax imposed under sections five, six, twelve, thirteen, fourteen, sixteen, seventeen, eighteen and nineteen of this article shall be eliminated.
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.

§55-7B-1. Legislative findings and declaration of purpose.

The Legislature hereby finds and 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;
That as in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest;
That our system of litigation is an essential component of this state interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence;
That liability insurance is a key part of our system of litigation, affording compensation to the injured while fulfilling the need and fairness of spreading the cost of the risks of injury;
That a further important component of these protections is the capacity and willingness of health care providers to monitor and effectively control their professional competency, so as to protect the public and insure to the extent possible the highest quality of care;
That it is the duty and responsibility of the Legislature to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers who can themselves obtain the protection of reasonably priced and extensive liability coverage;
That in recent years, the cost of insurance coverage has risen dramatically while the nature and extent of coverage has diminished, leaving the health care providers and the injured without the full benefit of professional liability insurance coverage;
That many of the factors and reasons contributing to the increased cost and diminished availability of professional liability insurance arise from the historic inability of this state to effectively and fairly regulate the insurance industry so as to guarantee our citizens that rates are appropriate, that purchasers of insurance coverage are not treated arbitrarily, and that rates reflect the competency and experience of the insured health care providers.
That in the year two thousand one, the cost of such liability insurance coverage has again risen dramatically, particularly so when compared to the cost of similar insurance coverage in neighboring states, which, together with other costs and taxation incurred by healthcare providers in this state, has created a competitive disadvantage in this state compared with neighboring states. As a result of these occurrences, West Virginia is placed at a competitive disadvantage with neighboring states in attracting and retaining quality health care providers to practice in West Virginia.
That nonbinding arbitration of medical professional liability claims has been utilized in other states and should be utilized in this state as an effective procedure to reduce the cost of resolving such claims;

Therefore, the purpose of this enactment is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth above. In so doing, the Legislature has determined that reforms in the common law and statutory rights of our citizens to compensation for injury and death, in the regulation of ratemaking and other practices by the liability insurance industry, and in the authority of medical licensing boards to effectively regulate and discipline the health care providers under such board must be enacted together as necessary and mutual ingredients of the appropriate legislative response.
§55-7B-2. Definitions.

(a) "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.
(b) "Health care facility" means any clinic, hospital, nursing home, or extended care facility in and licensed by the state of West Virginia and any state operated institution of clinic providing health care.
(c) "Health care provider" means a person, partnership, corporation, 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, or psychologist, or an officer, employee or agent thereof acting in the course and scope of such officer's, employee's or agent's employment.
(d) "Medical injury" means injury or death arising or resulting from the rendering or failure to render health care.
(d)(e) "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.
(e)(f) "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.
(f)(g) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
(g)(h) "Noneconomic loss" means losses including but not limited to pain, suffering, mental anguish and grief.
§55-7B-8. Limit on liability for noneconomic loss.

(a) The Legislature finds at the time of reenactment of

this section during the regular session of the Legislature, 2001, that the maximum amount recoverable as damages for noneconomic loss in any medical professional liability action brought against a health care provider allowable in the previous enactment of this section still serves the purposes for which this section was previously enacted and should be continued until amended by a future enactment of the Legislature.

(b) In any medical professional liability action brought against a health care provider, the maximum amount recoverable as damages for noneconomic loss shall not exceed on
e million dollars and the jury may be so instructed. In any such action where a jury returns a verdict for noneconomic damages which exceeds the maximum amount allowable in this section, the court shall grant a remittitur and enter a judgment reduced to the maximum amount permitted by this section.

55-7B-9a. Arbitration; exclusiveness of procedures.
All medical professional liability claims, suits, and actions, including cross claims, counterclaims and third party claims brought against a health care provider in which damages of seventy-five thousand dollars or more are sought are subject to the arbitration provisions in the following sections of this article, and such claims, suits and actions may not be brought or pursued in any court of this state except in accordance therewith.
Except as otherwise provided in this article, the West Virginia State Court Rules shall apply to all practice and procedure issues in arbitration proceedings in this article.
55-7B-9b. Health claims arbitration office.
(a) There is hereby created an executive agency known as the health claims arbitration office. The agency shall administer, coordinate and implement the arbitration of medical professional liability claims pursuant to the provisions of this article.
(b) The governor shall appoint, by and with the advice and consent of the Senate, an executive director, to be known as the "director", who shall serve at the will and pleasure of the governor. The director shall be a qualified administrator as determined by the governor, shall be a member of the bar of the supreme court of appeals for a period of five years, and shall have three years of litigation or arbitration experience in medical professional liability actions in this state. In addition to the director, there shall be such other employees as the director determines to be necessary. The director has the authority to promulgate rules, and such other authority to perform such duties as may be required or necessary to effectuate the arbitration provided in this article.
(c) The annual salary of the director shall be as determined by the Legislature.
55-7B-9c. List of qualified persons to serve as arbitrators.
(a) Except as otherwise provided in this article, the director shall prepare a list of qualified persons willing to serve as arbitrators of medical professional liability claims. The list shall be divided into three categories, one containing the names of attorneys, one containing the names of individuals who are health care providers, and one containing the names of persons from the general public who are neither attorneys, health care providers, or agents or employees of an insurance company or society. The list of health care providers shall, if practicable, include at least one health care provider from each recognized specialty, as requested by any party. The persons from the general public shall be chosen at random from existing lists or current jury panel lists, which shall be made available from the circuit clerks to the director.
(b) An attorney is qualified to serve if the attorney has been a member of the bar of the supreme court of appeals and has been in the practice of law in the state for three years. A health care provider is qualified to serve if the health care provider has been licenced to practice and has been in practice in this state for three years. The list of health care providers shall include the names of all physicians licenced to practice in this state and who are residents of this state. Every physician who is licenced to practice in this state and is a resident of this state shall be available to serve as an arbitrator of medical professional liability claims.
(c) The director shall by rule determine the fees that may be charged by arbitrators for services rendered by them in proceedings pursuant to this article.
55-7B-9d. Health claims arbitration fund.
(a) There is hereby created a special revenue fund in the state treasury which is designated and known as the "health claims arbitration fund". The fund shall consist of filing fees hereinafter provided, appropriations to the fund, gifts, grants or contributions to the fund, and all interest earned upon investment of the fund. The revenue shall be disbursed by the director in the manner and for the purposes of effecting the provisions of this article providing for arbitration and payment of arbitrator fees and expenses and shall not be treated by the auditor and treasurer as part of the general revenue of the state except as expressly provided in this section.
(b) The following fees shall be paid to the director at the time of filing a medical professional liability claim or response with the director:
(1) a fee of forty dollars for the filing of a claim, including any third-party claim; and
(2) a fee of twenty-five dollars for a filing of a response to a claim.
The filing fees shall be deposited by the director into the health claims arbitration fund.
(c) Unspent portions of the fund that exceed one hundred thousand dollars at the end of a fiscal year may be appropriated to the general revenue fund.
§55-7B-9e. Filing of claim; tolling of applicable statute of limitations; appointment of arbitrators; arbitrators' immunity from suit.
(a) Filing of claim and response:
(1) A person having a claim against a health care provider for damage due to a medical injury shall file his claim with the director, and, if the claim is against a physician, the director shall forward copies of the claim to the state licensing board by which the physician is licensed. The director shall cause a copy of the claim to be served upon the health care provider in accordance with the West Virginia Rules of civil procedure. The health care provider shall file a response with the director and serve a copy on the claimant and all other health care providers named therein within the time provided in the West Virginia Rules of civil procedure for filing a responsive pleading to a complaint. The claim and the response may include a statement that the matter in controversy falls within one or more particular recognized specialties.
(2) A third-party claim shall be filed within thirty days of the response of the third-party claimant to the original claim unless the parties consent to a later filing or a later filing is allowed by the panel chairman for good cause shown.
(3) A claimant may not add a new defendant after the arbitration panel has been selected, or ten days after the prehearing conference has been held, whichever is later, except for good cause shown, including, but not limited to, determining the existence or identity of a defendant as a result of responses to discovery requests or determination of the identity or existence of a defendant which could not have been earlier discovered after the exercise of due diligence by the claimant.
(4) Until all costs attributable to the first filing have been satisfied, a claimant may not file a second claim on the same or substantially the same grounds against any of the same parties.
(b) The filing of a claim pursuant to this section tolls the applicable statute of limitation upon the bringing of the action until such time as the claimant is required to file a complaint as otherwise provided in this article.
(c) Filing and service of certificate of qualified expert. - Unless the sole issue in the claim is lack of informed consent:
(1) (i) Except as provided in subdivision (ii) of this subsection, a claim filed after the first day of July, two thousand two, shall be dismissed, without prejudice, if the claimant fails to file a certificate of a qualified expert with the director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged medical injury, within ninety days from the date of the complaint. The claimant shall serve a copy of the certificate on all other parties to the claim or their attorneys of record in accordance with the West Virginia Rules of civil procedure.
(ii) In lieu of dismissing the claim, the panel chairperson shall grant an extension of no more than ninety days for filing the certificate required by this subsection, if:
1. The limitations period applicable to the claim has expired or will expire within ninety days; and
2. The failure to file the certificate was neither willful nor the result of gross negligence.
(2) A claim filed after the first day of July, two thousand two may be adjudicated in favor of the claimant on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury, within one hundred-twenty days from the date the claimant served the certificate of a qualified expert set forth in subdivision (1) of this subsection on the defendant. If the defendant does not dispute liability, a certificate of a qualified expert is not required under this subsection. The defendant shall serve a copy of the certificate on all other parties to the claim of their attorneys of record in accordance with the West Virginia Rules of civil procedure.
(3) The attorney representing each party or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached. Discovery is available as to the basis of the certificate.
(4) The attesting expert may not devote annually more than twenty percent of the expert's professional activities to activities that directly involve testimony in personal injury claims.
(5) An extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for good cause shown.
(6) In the case of a claim against a physician, the director shall forward copies of the certificates filed under subdivisions (1) and (2) of this subsection to the state licensing board of the physician.
(7) For purposes of the certification requirements of this subsection for any claim filed on or after the first day of July, two thousand two:
(i) A party may not serve as a party's expert; and
(ii) The certificate may not be signed by:
1. A party;
2. An employee or partner of a party; or
3. An employee or stockholder of any professional corporation of which the party is a stockholder.
(d) Lists of names to be given parties; updating biographical statements. -
(1) Within twenty days after the filing of the claimant's certificate of a qualified expert, or, in a case in which lack of informed consent is the sole issue, within twenty days after the filing of the defendant's response, the director shall deliver to each party the names of six persons chosen at random from the attorney categorical list prepared by the director pursuant to subsection (c) of section nine-c of this article, together with a brief biographical statement as to each of these persons.
(2) No later than twenty days after receiving notice of the scheduled hearing, the director shall deliver to each party the names of six persons chosen at random from each of the remaining categorical lists prepared by the director pursuant to subsection (c), section nine-c of this article together with a brief biographical statement as to each of these persons. If the claim or the response states that the matter falls within one or more recognized specialties, the director, if practicable, shall include persons in the specialty on the list from the health care provider category. Before delivering each list, the director shall inquire of the persons selected to assure the director that they do not have a personal or economic relationship with any of the parties or their counsel, or any cases in which they are a party before the arbitration office, that can form the basis of any partiality on their part. If, in the judgment of the director, a person selected has such a relationship with a party, his name shall be replaced by another chosen at random.
(3) The biographical statements sent to the parties under this subsection shall have been updated within two years.
(e) Objection to arbitrator on list; striking names. -
(1) Within fifteen days after delivery of the list, a party may object in writing stating the reasons therefor to the inclusion of any arbitrator on the list. If the director finds a reasonable basis for the objection, the director shall replace the name of the arbitrator with the name of another arbitrator. Within thirty days after delivery of the initial list or, if an arbitrator is replaced, within thirty days after delivery of the replacement list, each party shall strike from the list in each category any name or names that are unacceptable and return a copy of the list with his or her strikes to the director. Upon motion of either party, the panel chairman, for good cause shown and in conjunction with the director, shall require that subsequent strikes be made in a lesser period of time. A party may not strike more than two names in any category.
(2) If: (i) The claim is against more than one health care provider, whether directly by a claimant or as a result of a third-party claim, the health care providers claimed against shall be treated as a single party and shall exercise their strikes jointly;
(ii) There is more than one claimant, the claimants shall be treated as a single party and shall exercise their strikes jointly;
(iii) Within the time period specified in subdivision (1) of this subsection, multiple claimants or multiple health care providers fail to agree on their strikes in any category, they shall notify the director of their disagreement, and the director may make the strikes on their behalf with respect to that category; and
(iv) Any party fails to return a copy of the list with his or her strikes within the time period specified in subdivision (1) of this subsection, the director may make the strikes for that party.
(e) Selection of arbitrators; attendance of alternates at proceedings. -
(1) The director shall compare the lists returned to the director and the lists from which the director has stricken names pursuant to subsection (d) of this section, and shall select the first mutually agreeable person in each category as the arbitrators.
(2) The director shall establish by rule procedures for selection of alternates to serve in place of arbitrators unable to serve after appointment. Procedures for the selection of alternate arbitrators shall provide that alternate arbitrators are chosen at random from the categorical lists prepared by the director under subsection (c), section nine-c of this article, and may not be confined to time limitations in subsection (d) (1) of this section. The director may require the attendance of an appropriate alternate at any proceeding under this article.
(f) Agreement for single arbitrator. -
(1) The parties may, within the time for returning their lists to the director, agree in writing upon a single arbitrator. In that event, they shall advise the director in writing of their choice, and the one arbitrator shall constitute the arbitration panel.
(2) The director shall prepare a separate list of qualified attorneys willing to serve as single arbitrators.
(g) Arbitrator's immunity from suit. - An arbitrator shall have the immunity from suit for any act or omission constituting negligence while acting or performing duties in his or her capacity as an arbitrator.
§55-7B-9f. Powers of arbitrators.
(a) The powers of the arbitration panel shall be exercised by a majority of the arbitrators unless otherwise provided by agreement of the parties or unless otherwise provided in this article. Except as otherwise provided in this article, the arbitration panel may determine any question and render a final award by a majority of the arbitrators on the panel. If an arbitrator for any reason ceases to act during the course of the arbitration hearing, the remaining arbitrators, together with any other arbitrator appointed to act as an alternate arbitrator, may continue with the hearing and the determination of the claim.
(b) The arbitration panel chairperson shall have the power to administer sworn oaths of witnesses testifying at a hearing at the request of a party or of the majority of the arbitrators.
(c) The arbitration panel chairperson has the power to issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence. A subpoena shall be enforced in the manner provided by law or rule for the enforcement of subpoenas in a civil action. All provisions of law which compel a witness to testify under oath apply to proceedings in this article.

§55-7B-9g. Venue of arbitration hearings; notice of hearing.
(a) Venue of arbitration hearings shall be the same as venue in civil actions provided in section one, article one, chapter fifty-six of this code. The claimant shall specify in his or her claim filed pursuant to section nine-e of this article the county in which the arbitration shall be held.
(b) Unless otherwise provided by agreement of the parties, the arbitration panel chairperson shall designate a time and place for hearing and shall notify the parties by poersonal service or by certified mail of the time and place of hearing, not less than thirty days before hearing. Each party shall have the right to one continuance of the hearing, and thereafter a party may be granted a continuance of a hearing for good cause shown.
§55-7B-9h. Arbitration of claim.
(a) Issues to be referred by director to panel chairperson and panel. -
(1) Except as provided under subdivision (2) of this subsection, all issues of law shall be referred by the director to the panel chairperson. All issues of fact shall be referred by the director to the arbitration panel.
(2) Where a panel chairperson has not been appointed or is temporarily unable to serve, the director may rule on all issues of law arising prior to hearing that are not dispositive of the case and shall include the assessment of costs.
(b) Application of other sections and West Virginia Rules. - (1) Except for the provisions of the West Virginia Rules of civil procedure relating to time for the completion of discovery, the provisions of the West Virginia rules of civil procedure relating to discovery are applicable to proceedings under this article. All discovery in any action under this article shall be completed within two hundred and seventy days from the date on which all defendants have been served, unless extended by the panel chairperson for good cause shown.
(2) Properly authenticated hospital records and the records of treating health care providers are admissible without the necessity of calling the physician, subject to reasonable notice and the right of the opposing party to depose.
(c) Chairperson of panel. - The attorney member of the panel shall be chairperson and shall decide all prehearing procedures including issues relating to discovery and motions in limine. The chairperson shall rule in camera on any motion in limine.
(d) Testimony by additional experts. - A party may not present testimony from more than two experts in a designated specialty before an arbitration panel unless the panel chairperson, for good cause shown, permits additional experts.
(e) Determinations. - The arbitration panel shall first determine the issue of liability with respect to a claim referred to it. If the arbitration panel determines that the health care provider is not liable to the claimant or claimants the award shall be in favor of the health care provider. If the arbitration panel determines that a health care provider is liable to the claimant or claimants, it shall then consider, itemize, assess, and apportion appropriate damages against one or more of the health care providers that it has found to be liable. The award shall itemize by category and amount any damages assessed for incurred medical expenses, rehabilitation costs, and loss of earnings. Damages assessed for any future expenses, costs, and losses shall be itemized separately.
(f) Assessment of costs; credit for filing fee. -
(1) The award shall include an assessment of costs, including the arbitrators' fees.
(2) If there is no panel determination, the panel chairperson shall assess costs.
(3) The party who pays the costs shall receive a credit for the filing fee the party pays under section nine-c of this article.
(g) Delivery of award to director; service of copies- The arbitration panel shall make its award in writing and deliver it to the director within one year from the date on which all defendants have been served and within ten days after the close of the hearing. The director shall cause a copy of the award to be served on each party within fifteen days of having received it from the arbitration panel.
(h) Modification or correction of award-
(1) A party may apply to the panel to modify or correct an award within twenty days after delivery of the award to the applicant.
(2) A written notice of an application to modify or correct the award stating the grounds therefor shall be served upon the opposing party and upon the panel chairperson. The opposing party shall serve any objection to the application upon the applicant and the panel chairperson within ten days after being served with the application.
(3) The panel may modify or correct an award upon any of the following grounds:
(A) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
(B) The panel has awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted;
(C) The award is imperfect in a matter of form, not affecting the merits of the controversy;
(D) For the purposes of clarity.
(4) The panel shall conduct a hearing upon the application within thirty days upon receipt of the application and shall give the parties ten days notice of the hearing. If the correction or modification of the award prayed for in the application is granted, the panel shall confirm the award as modified or corrected. Otherwise, the panel shall confirm the award as made.
(i) Confirmation of award- Subject to the provisions of subsection (h) of this section and section nine-i of this article, the award of the arbitration panel shall be final and binding on the parties. After the time for either correcting, modifying or rejecting the award has expired the director may, or, when requested by any party, shall file a copy of the award with the circuit court having proper venue as designated upon the filing of the complaint and the court shall confirm the award. Upon confirmation the award shall constitute a final judgment of the court.
§55-7B-9i. Judicial review.
(a) Rejection of award or assessment of costs. - A party may reject an award for any reason. A notice of rejection must be filed with the director and the arbitration panel and served on the other parties or their counsel within thirty days after the award is served upon the rejecting party, or, if a timely application for modification or correction has been filed, within ten days after a disposition of the application by the panel, whichever is greater.
(b) Upon expiration of the time to file a notice of rejection of the award provided in subsection (a) of this section and no notice has been filed, the arbitration award shall be final and binding upon all parties and upon confirmation pursuant to subdivision (i) of section nine-h of this article is an award enforceable and subject to the provisions of article ten of this chapter.
(c) Commencement of action after rejection of award-
(1) Within ninety days after a rejection of the award has been filed by a party pursuant to subdivision (a) of this section, or prior to the running of the applicable statute of limitation, whichever is greater, the claimant may file an action upon the claim as if the arbitration had not occurred.
(2) The trial date for an action commenced pursuant to this subsection shall have precedence over all cases except criminal matters and any other matters given priority by statute or by state court rules.
(3) The clerk of the court in which an action is filed under this subsection shall forward a copy of the action to the state licensing board of any physician named as a party defendant therein.
(d) Nonadmissibility of award: - The arbitration award is not admissible as evidence in the judicial proceeding for any purpose.
(e) Admissibility of depositions from arbitration proceedings. -
(1) Depositions taken in the arbitration proceedings shall be as fully admissible as if noticed in court proceedings. Interrogatories and requests for admissions and production of documents in the arbitration proceedings remain binding in the court proceedings, subject to a duty of supplementation.
(2) The provisions of subdivision (1) of this subsection do not affect any rights to discovery on appeal.
(f) Itemization of certain damages; remittitur. - Upon timely request, the trier of fact shall by special verdict or specific findings itemize by category and amount any damages assessed for incurred medical expenses, rehabilitation costs, and loss of earnings. Damages assessed for any future expenses, costs, and losses shall be itemized separately. If the verdict or findings include any amount for such expenses, costs, and losses, a party may filing a motion within the time limits for filing a motion for a new trial may object to the damages as excessive on the ground that the award for noneconomic damages exceeds the amount allowable pursuant to section eight of this article. The court shall hold a hearing on the objection. If the court finds that the damages are excessive on such grounds , it shall grant a remittitur of the excess. Nothing in this subsection shall be construed to otherwise limit any other grounds for a motion for a new trial by any party. (g) Assessment of costs. - If the verdict of the trier of fact is not more favorable to the party that rejected the arbitration panel's award, than was the award, the costs of the judicial proceedings shall be assessed against the rejecting party. Otherwise, the court shall determine the assessment of such costs in accordance with the law and the West Virginia rules of civil procedure. If the court vacates an assessment of arbitration costs, it shall reassess those costs as justice requires.

(h) Venue. - Venue shall be determined in the same manner as is determined in all other civil actions.
(i) Filing copy of verdict or other final disposition with director. - The clerk of the court shall file a copy of the verdict or any other final disposition with the director.
§55-7B-9j. Waiver of arbitration before claim heard.
(a) In general. - At any time before the hearing of a claim with the health claims arbitration office, the parties may agree mutually to waive arbitration of the claim, and the provisions of this section then shall govern all further proceedings on the claim.
(b) Written election. -
(1) The claimant shall file with the director a written election to waive arbitration which must be signed by all parties or their attorneys of record in the arbitration proceeding.
(2) After filing, the written election shall be mutually binding upon all parties.
(c) Filing of election complaint. -
(1) Within sixty days after filing the election to waive arbitration, the plaintiff shall file a complaint and a copy of the election to waive arbitration with the circuit court or United States District Court.
(2) After filing the complaint, the plaintiff shall serve a summons and a copy of the complaint upon the attorney of record for all parties in the health claims arbitration proceeding.
(3) Failure to file a complaint within sixty days of filing the election to waive arbitration may constitute grounds for dismissal of the complaint upon motion by an adverse party and upon a finding of prejudice to that party due to the delay in the filing of the complaint.
(d) Additional defendants must join in waiver. - After filing the election to waive arbitration, the plaintiff may not join an additional health care provider as a defendant in any action brought under subsection (c) of this section unless a written election to waive arbitration has been filed by that health care provider under subsection (b) of this section.
(e) Procedure. - In any case subject to this section, the procedures of subsection (f), section nine-i of this article shall apply.
(f) Neutral case evaluation. -
(1) If the parties mutually agree to a neutral case evaluation, the circuit court or United States District Court, to which the case has been transferred after the waiver of arbitration, may refer the case to the health claims arbitration office not later than six months after a complaint is filed under subsection (c) of this section.
(2) On receipt of the case, the director shall send to the parties a list of six attorneys who meet the qualifications listed in subsection (b), section nine-c of this article and have tried at least three health care malpractice cases.
Each party may strike two names from the list. If the claim is against more than one health care provider, whether directly by a claimant or as a result of a third-party claim, the health care providers claimed against shall be treated as a single party and shall exercise their strikes jointly. If there is more than one claimant, the claimants shall be treated as a single party and shall exercise their strikes jointly. If multiple claimants or multiple health care providers fail to agree on their strikes or fail to return their strike list to the director within the time specified in this subdivision, the director shall make the strikes on their behalf. The strikes shall be submitted to the director within ten days after delivery of the list. The director shall appoint an evaluator from the unstricken names on the list.

(3) Upon appointment, the evaluator shall schedule a neutral case evaluation session to be held within forty-five days after the appointment to pursue the neutral case evaluation of the claim or to resolve any issues to which the parties agree to stipulate before trial. (4) Within ten days after the neutral case evaluation session, the evaluator shall notify, in writing, the director and the circuit court or United States District Court of the results of the neutral case evaluation.
(5) During the neutral case evaluation period, the circuit court or United States District Court shall continue to have jurisdiction to rule on any motions or discovery matters. The neutral case evaluation may not interfere with the scheduled trial.
(6) The evaluator shall be paid in accordance with fees set by the director in subsection (c), section nine-c of this article. Unless otherwise agreed by the parties, the cost of neutral case evaluation, which may not exceed three hundred dollars per case, shall be divided equally between the parties.
(g) Applicability. - The provisions of this section apply only if no party waives arbitration of the claim under the provisions of section nine-k of this article.
§55-7B-9k. Waiver of arbitration after filing certificate of qualified expert.
(a) In general. - Arbitration of a claim with the health claims arbitration office may be waived by the claimant or any defendant in accordance with this section, and the provisions of this section shall govern all further proceedings on any claim for which arbitration has been waived under this section.
(b) Waiver by claimant. -
(1) Subject to the time limitation under subsection (d) of this section, any claimant may waive arbitration at any time after filing the certificate of qualified expert required by subsection (c), section nine-e of this article by filing with the director a written election to waive arbitration signed by the claimant or the claimant's attorney of record in the arbitration proceeding.
(2) The claimant shall serve the written election on all other parties to the claim in accordance with the West Virginia rules of civil procedure.
(3) If the claimant waives arbitration under this subsection, all defendants shall comply with the requirements of subsection (c), section nine-e of this article by filing their certificates at the health claims arbitration office, after the election, in the appropriate circuit court or United States District Court.
(c) Waiver by defendant. -
(1) Subject to the time limitation under subsection (d) of this section, any defendant may waive arbitration at any time after the claimant has filed the certificate of qualified expert required by subsection (c), section nine-e of this article by filing with the director a written election to waive arbitration signed by the defendant or the defendant's attorney of record in the arbitration proceeding.
(2) The defendant shall serve the written election on all other parties to the claim in accordance with the West Virginia rules of civil procedure.
(3) If a defendant waives arbitration under this subsection, the defendant shall comply with the requirements of subsection (c), section nine-e of this article by filing the certificate at the health claims arbitration office, or, after the election, in the appropriate circuit court or United States District Court.
(d) Time for filing. -
(1) A waiver of arbitration by any party under this section may be filed not later than sixty days after all defendants have filed a certificate of qualified expert under subsection (c), section nine-e of this article.
(2) Any waiver of arbitration after the date specified in subdivision (1) of this subsection shall be in accordance with the provisions of section nine-j of this article.

(e) Effect of election. - After filing, the written election shall be binding upon all parties.
(f) Filing of complaint; service; dismissal. -
(1) Within sixty days after the filing of an election to waive arbitration by any party, the plaintiff shall file a complaint and a copy of the election to waive arbitration in the appropriate circuit court or the United States District Court.
(2) After filing the complaint, the plaintiff shall serve a summons and a copy of the complaint upon all defendants or the attorney of record for all parties in the health claims arbitration proceeding.
(3) Failure to file a complaint within sixty days of filing the election to waive arbitration may constitute grounds for dismissal of the complaint upon a motion by an adverse party and
upon a finding of prejudice to the adverse party due to the delay in the filing of the complaint.
(g) Joinder of additional health care providers. - After the filing of an election to waive arbitration under this section, if a party joins an additional health care provider as a defendant in an action, the party shall file a certificate of qualified expert required by subsection (c), section nine-e of this article with respect to the additional health care provider.
(h) Procedure. - In any case subject to this section, the procedures of subsection (f), section nine-i of this article shall apply.
(i) Neutral case evaluation. -
(1) If the parties mutually agree to a neutral case evaluation, the circuit court or United States District Court, to which the case has been transferred after the waiver of arbitration, may refer the case to the health claims arbitration office not later than six months after a complaint is filed under subsection (c) of this section. On receipt of the case, the director shall send to the parties a list of six attorneys who
meet the qualifications listed in subsection (b), section nine-c of this article and have tried at least three health care malpractice cases.
(2) Each party may strike two names from the list. The strikes shall be submitted to the director within ten days after delivery of the list. If the claim is against more than one health care provider, whether directly by a claimant or as a result of a third-party claim, the health care providers claimed against shall be treated as a single party and shall exercise their strikes jointly. If there is more than one claimant, the claimants shall be treated as a single party and shall exercise their strikes jointly. If multiple claimants or multiple health care providers fail to agree on their strikes or fail to return their strike list to the director within the time specified in this subdivision, the director shall make the strikes on their behalf. Upon receipt of the lists from the parties after the parties have made their strikes, the director shall appoint an evaluator from the unstricken names on the list.
(3) Upon appointment, the evaluator shall schedule a neutral case evaluation session to be held within forty-five days after the appointment to pursue the neutral case evaluation of the claim or to resolve any issues to which the parties agree to stipulate before trial.
(4) Within ten days after the neutral case evaluation session, the evaluator shall notify, in writing, the director and the circuit court or United States District Court of the results of the neutral case evaluation.
(5) During the neutral case evaluation period, the circuit court or the United States District Court shall continue to have jurisdiction to rule on any motions or discovery matters. The neutral case evaluation may not interfere with the scheduled trial.
(6) The evaluator shall be paid in accordance with fees for arbitrators determined pursuant to subsection (c), section nine-c of this article. Unless otherwise agreed by the parties, the cost of neutral case evaluation, which may not exceed $300 per case, shall be divided equally between the parties.

NOTE: The purpose of this bill is to provide incentives for the retention of certain health care providers in this state, to be known as the "West Virginia Medical Access Enhancement Act". The bill (1) Phases out over a three year period the health care provider tax on gross receipts of services performed in this state by chiropractors, dentists, nurses, opticians, optometrists, physicians, podiatrists, psychologists and therapists; (2) Reaffirms the intent of the legislature in maintaining the cap on noneconomic damages allowed in medical professional liability actions at one million dollars; and (3) Provides a a comprehensive procedure for nonbinding arbitration of medical professional liability claims prior to the filing of an action on the claim, for all claims in which damages sought exceed $75,000.00.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
Section thirty-six, article twenty-seven, chapter eleven and sections nine-a through nine-k, article seven-b, chapter fifty- five are new; therefore, strike-throughs and underscoring are omitted.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print