SB 652 Text

Senate Bill No. 652
(By Senators Foster, Jenkins, Facemyer and McKenzie)
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[Introduced March 21, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-6-7, relating to creating a Physicians Lien Act; effect of lien; records of physician; priority of lien; and exclusion of health insurance benefits.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §33-6-7, to read as follows:
ARTICLE 6. THE INSURANCE POLICY.
§33-6-37. Physicians Lien Act.
(a) Creation of Physicians Lien.-- Every licensed physician, including medical physicians, osteopathic physicians, chiropractic physicians, podiatric physicians and physical therapists practicing in this state who renders services by way of treatment to injured persons, except for services covered by Workers Compensation and rendered pursuant to article four, chapter twenty-four of this code, shall have a lien upon all claims and causes of action for the amount of the physician's reasonable charges up to the date of payment of such claims and causes of action: Provided, That the lien shall include a notice in writing containing the name and address of the injured person, the date of the injury, the name and address of the licensed physician or therapist practicing in this state and the name of the party alleged to be liable to make compensation to such injured person for the injuries received, which notice shall be served on both the injured person and the party against whom such claim or right of action exists or that persons liability insurance company. Service of the lien shall be made by registered or certified mail or in person.
(b) Effect of Lien.-- The lien of any such licensed physician or therapist practicing in this state shall, from and after the time of service of the aforesaid notice, attach to any verdict, judgment or order secured in any suit or action by the injured party based on any negligent or wrongful act, and to any money or property which may be recovered by compromise settlement, or paid in satisfaction of any verdict or judgment resulting from any suit or action brought by such injured person. In case of death of the injured person, the lien shall attach to any money or property which may be recovered by compromise settlement or paid in satisfaction of any verdict or judgment resulting from any suit or action brought by the administrator of the estate of the injured person against any other person for the recovery of damages on account of injuries.
(c) Records of Physician; examination by party to action.-- Any party to a cause pending in circuit court against whom a claim shall be therein asserted for damages resulting from bodily injury shall, upon request in writing and upon presentation of a HIPPA compliant medical record release authorization or subpoena be permitted to examine the records of the physician or therapist in reference to the examination and treatment of the injured person. Any physician or therapist claiming a lien under this section shall, within thirty days of being so requested in writing by any such party, and only after presentation of a HIPPA compliant medical record release authorization or subpoena, furnish to such requesting party, or file with the clerk of the court in which the cause is pending, a written statement of the nature and extent of the injuries sustained by and the treatment given to the injured person by such physician or therapist and the history, if any, as given by the injured person, insofar as shown by the medical records and the manner in which the injuries were received.
(d) Records of Physician; examination by party against whom a claim shall be asserted.-- Any party against whom a claim shall be therein asserted for damages resulting from injuries shall, upon request in writing and upon presentation of a HIPPA compliant medical record release authorization, be permitted to examine the records of the physician in reference to the examination and treatment of the injured person. Any physician claiming a lien under this section shall, within thirty days of being so requested in writing by any such party, and only after presentation of a HIPPA compliant medical record release authorization, furnish to such party, a written statement of the nature and extent of the injuries sustained by and the treatment given to the injured person by such physician or therapist and the history, if any, as given by the injured person, insofar as shown by the medical records and the manner in which the injuries were received.
(e) Failure to furnish medical report; effect.-- Should any physician or therapist fail or refuse to give or file a written statement in conformity with and as required by subsections (c) and (d) of this section after being so requested in writing in conformity with said subsections, the lien of such physician shall immediately become null and void.
(f) Adjudication of rights; priority of liens.-- Upon petition filed by the injured person or medical lien holder practicing in this state, the circuit court shall, on written notice to all interested adverse parties, adjudicate the rights of all interested parties and enforce their liens.
(g) Exclusion of health insurance benefits.-- The lien created herein attaches only to payments made for the benefit of insureds arising under a contract of insurance including all bodily injury liability insurance, underinsured liability insurance, uninsured liability insurance and medical payment insurance coverage and to payments made in a compromise settlement of any bodily injury claim or cause of action or payments made to satisfy a verdict or judgment paid from any insurance company, corporation or individual. The lien does not attach to payments made to injured persons under a policy or contract of group or individual accident and sickness insurance including health insurance benefits, paid under insurance contracts governed by articles fifteen, sixteen, sixteen-c, twenty-a, twenty-four, twenty-five and twenty-five-a, chapter thirty-three of this code, or by any contract of insurance of a self-insured health care fund.
(h) Payment required.-- Any insurance company, corporation or individual who fails to pay or satisfy any lien created herein at the time such bodily injury claim or cause of action is settled or any such verdict or judgment is satisfied shall be held liable to the licensed physician or therapist for the full amount of the lien.
(i) HIPPA Compliant Medical Records Release Authorization.-- A HIPPA compliant medical records release authorization for the purpose referred to in this section is a written medical record release document that is compliant with 45 C.F.R. §§ 160 - 164 (2003) and the Health Insurance Portability and Accountability Act 1996 (HIPPA) and which shall also be signed by the person or a legal representative of the person whose protected health information is the subject of the request.

NOTE: The purpose of this bill is to create a Physicians Lien Act and defines the effect of lien, records of a physician, priority of liens and exclusion of health insurance benefits.

This section is new; therefore, strike-throughs and underscoring have been omitted.

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