H. B. 2555


(By Delegates Haskins, Yeager and Henderson)

[Introduced February 17, 1995; 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 a new article, designated article seven-d, relating to medical malpractice review panels; arbitration of malpractice claims.

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 a new article, designated article seven-d, to read as follows:
ARTICLE 7D. MEDICAL MALPRACTICE REVIEW PANELS; ARBITRATION OF
MALPRACTICE CLAIMS.

§55-7D-1. Definitions.
As used in this article:
"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 diagnosis, care, treatment or confinement.
"Health care provider" means a person, corporation, facility or institution licensed by this state to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, health maintenance organization or a nursing home as defined in this code, except those nursing institutions conducted by and for those who rely upon treatment by spiritual means alone through prayer in accordance with a recognized church or religious denomination, or an officer, employee or agent thereof acting in the course and scope of his or her employment.
"Health maintenance organization" means any person licensed pursuant to this code who undertakes to provide or arrange for one or more health care plans.
"Hospital" means a public or private institution licensed pursuant to this code.
"Impartial attorney" means an attorney who has not represented: (a) The claimant, his or her family, partners, coproprietors or other business interests; or (b) the health care provider, his or her family, partners, coproprietors or other business interests.
"Impartial health care provider" means a health care provider who: (a) Has not examined, treated or been consulted regarding the claimant or his or her family; (b) does not anticipate examining, treating, or being consulted regarding the claimant or his or her family; or (c) has not been an employee, partner or coproprietor of the health care provider against whom the claim is asserted.
"Malpractice" means any tort based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.
"Patient" means any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his or her emergency services in accordance with the laws of this state.
"Physician" means a person licensed to practice medicine or osteopathy in this state pursuant to this code.
§55-7D-2. Notice of claim for medical malpractice required;
request for review by medical malpractice review panel; rescission of request; determination on request.

(a) No action may be brought for malpractice against a health care provider unless the claimant notifies the health care provider in writing by registered or certified mail prior to commencing the action. The written notification shall include the time of the alleged malpractice and a reasonable description of the act or acts of malpractice. The claimant or health care provider may within sixty days of the notification file a written request for a review by a medical malpractice review panel established as provided in section four of this article. The request for review shall be mailed to the chief justice of the supreme court of appeals of West Virginia. Upon receipt of the request, the chief justice shall designate one sitting or one retired circuit court judge to act as chairman of the panel. No actions based on alleged malpractice may be brought within ninety days of the notification by the claimant to the health care provider. If a panel is requested no actions based on alleged malpractice may be brought within the period of review by the medical review panel.
(b) Whenever the requesting party rescinds a request for review by a medical malpractice review panel, notice of the rescission shall be given to counsel for the opposing party at the time notice is given to the chief justice.
(c) Notice of the determination of the chief justice on a request for review shall be given to counsel for both parties.
§55-7D-3. Amendment of notice of claim.
After the notice of claim has been delivered or mailed to a health care provider, the chairman or, if a request for a review panel has not been filed, the court in which a complaint based on the claim has been or would be filed, may grant leave to amend the notice to add additional parties or causes of action in furtherance of the ends of justice except where: (a) The request for leave to amend is made less than ten days before the date set for the review panel to convene or for the hearing; or (b) the chairman or court finds that the request for leave to amend is without merit. If leave to amend is granted, the chairman or court may, upon motion of either party, stay the review panel proceedings or continue the trial, extend the time for completion of discovery, filing of pleadings and other procedural limitation periods, or enter other orders as are appropriate to avoid prejudice to the parties and to avoid unnecessary delay and duplication in the proceedings.
Leave to amend the notice pursuant to this section may not be granted if the chairman or court finds that the applicable statute of limitations has expired with respect to the new or additional parties or causes of action.
§55-
7D-4. Certificate of parties; composition, selection, etc.,
of panel.

 Upon certification by the parties that discovery has been completed, the chief justice of the supreme court of appeals of West Virginia shall appoint a medical review panel. The certification may not of itself preclude the taking of additional discovery in the event an action is subsequently filed. The medical review panel shall consist of: (a) Three impartial attorneys and three impartial health care providers, licensed and actively practicing their professions in the state; and (b) one sitting or one retired judge of a circuit court who shall serve as chairman of the panel. The chairman may not vote except in the case of a tie vote. The medical review panel shall be selected by the chief justice from a list of health care providers submitted to him or her by the state board of medicine and a list of attorneys submitted by the West Virginia state bar. In the selection of the health care provider members, the chief justice shall give due regard to the nature of the claim and the nature of the practice of the health care provider. The members of the medical review panel shall be sworn by the chairman to render an opinion faithfully and fairly.
§55-7D-5. Completion of discovery; hearing date; notification to
parties and panel members; oath of panel members.

At the time that the panel chairman is designated, the chief
justice of the supreme court of appeals of West Virginia shall advise the chairman of the names of the panel members. Within ten days of receipt of his or her designation the chairman shall advise the parties of the date set for the completion of discovery. Nothing in this section may preclude the taking of additional discovery if an action is subsequently filed.
Except for good cause shown, the date for completion of discovery may not be set beyond ninety days from the date on which the chairman was designated. Within the period set for the taking of discovery and upon consultation with the panel members, the chairman shall notify the parties of the date set for a hearing by the review panel, if any, or the date on which the panel will convene. The date may not be set sooner than ten days after the date for completion of discovery. Upon completion of discovery, the chief justice shall notify the parties of the name, address and professional practice of each panel member and shall also notify the panel members, in writing, of their appointment.
The written notification to the panel members of selection by the chief justice shall include the definitions of "impartial attorney" and "impartial health care provider" as contained in section one of this article and a copy of the oath to which the panel members will be required to subscribe when the panel convenes. The oath shall be as follows:
"I do solemnly swear (or affirm) that I have no past or present relationship with the parties nor am I aware of anything that would prevent me from being impartial in my deliberations. I further swear (or affirm) that I will render an opinion faithfully and fairly on the basis of the evidence presented, applying any professional expertise I may have, giving due regard to the nature of the claim and the nature of the practice of the health care provider." A panel member who, for any reason, could not take the oath of impartiality shall promptly notify the chief justice, in writing, of such inability. The chief justice shall then select and notify another panel member in place of and practicing the same profession as the disqualified member.
§55-7D-6. Submission of evidence to panel; depositions and
discovery; duties of chairman; access to material.

The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties, upon appointment of the panel, to each member of the panel in written form. Either party, upon request, shall be granted a hearing before the panel. The evidence may consist of medical charts, X-rays, laboratory tests, excerpts of treatises, and depositions of witnesses, including parties, and, when a hearing is held, oral testimony before the panel. At the discretion of the chairman, additional depositions of parties and witnesses may be taken, or other additional discovery may be had, at any time prior to hearing by any party. The West Virginia rules of civil procedure shall govern the taking of depositions: Provided, That the chairman shall rule on the admissibility of all or any part of a deposition offered as evidence at the hearing. Either party may have discovery pursuant to procedures set out in the West Virginia rules of civil procedure prior to appointment of the panel or thereafter in the discretion of the chairman. In the event that any party objects to all or any part of the discovery proceedings prior to the appointment of the panel or object to all or part of any additional discovery allowed after the panel is appointed, the dispute shall be presented to and resolved by the chairman pursuant to the West Virginia rules of civil procedure.
Within ten days after his or her appointment, the chairman shall designate the office of a clerk of the circuit court within the circuit wherein the chairman resides to which office process shall be returnable. The chairman shall also designate the style of the case under which process shall issue. Process for discovery shall issue upon application to the clerk. Any discovery and any depositions taken for purposes of discovery or otherwise, under this section, may be used in any subsequent civil proceeding based upon the same claim for any purpose otherwise proper under the West Virginia rules of civil procedure. The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in section ten of this article. A copy of the evidence shall be sent to each member upon appointment to the panel. All parties shall have full access to any material submitted to the panel.
§55-7D-7. Assembly of record; transfer to trial court.
Upon conclusion of deliberations and rendering of an opinion by the panel, all documentary evidence submitted to the panel, a transcript of the hearing, if any, and a copy of the written opinion of the panel shall be filed in the office of the clerk designated pursuant to section six of this article. The record shall be maintained for one hundred twenty days from the date the statute of limitations on the claim would run or sixty days following the issuance of the panel opinion, whichever is later. However, upon notice and request from the clerk of the court in which an action is filed within that time period, the record shall be transferred to the office of the clerk in which the action is pending. Upon completion of the action, the clerk of the trial court shall transfer a copy of the panel record to the executive secretary of the supreme court of appeals of West Virginia. If no request for transfer is made within the time period specified, the record shall be transferred to and filed with the executive secretary of the supreme court of appeals of West Virginia. The record shall be maintained by the executive secretary of the supreme court of appeals of West Virginia.
The party filing an action based upon the claim submitted to the review panel, shall advise the clerk of the trial court at the time the motion for judgment is filed in which clerk's office the panel record is being held.
§55-7D-8. Removal of record for inspection and copying; notice.
Any party may, upon notice to all other parties or their counsel, remove any book, record or document which has been filed with the clerk of the trial court or has become a part of the permanent record filed with the executive secretary of the supreme court of appeals of West Virginia for purposes of inspection and copying. The party removing the documents shall give an appropriate receipt to the clerk or executive secretary and shall be responsible for the return of the materials within ten days.
§55-7D-9. Conduct of proceedings.
In the conduct of its proceedings:
(a) The testimony of the witnesses shall be given under oath. Members of the medical review panel, once sworn, shall have the power to administer oaths.
(b) In the event a hearing is held, the parties are entitled to be heard, to present relevant evidence, and to cross-examine witnesses to the extent necessary to enable the panel to render an opinion as specified in section ten of this article. The rules of evidence need not be observed. The medical review panel may proceed with the hearing and render an opinion upon the evidence produced, notwithstanding the failure of a party duly notified to appear.
(c) The medical review panel may issue or cause to be issued, on its own motion or on application of any party, subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence. Subpoenas so issued shall be served and, upon application by a party or the panel to a court of proper venue having jurisdiction over a motion for judgment based on the claim, shall be enforced in the manner provided for the service and enforcement of subpoenas in a civil action. All provisions of law compelling a person under subpoena to testify are applicable.
(d) The hearing shall be conducted by all members of the medical review panel unless the parties otherwise agree. A majority of the members present may determine any question and may render an opinion.
§55-7D-10. Opinion of panel.
(a) Within thirty days after receiving all the evidence, the panel shall have the duty, after joint deliberation, to render one or more of the following opinions:
(1) The evidence does not support a conclusion that the health care provider failed to comply with the appropriate standard of care;
(2) The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that the failure is a proximate cause in the alleged damages;
(3) The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that the failure is not a proximate cause in the alleged damages; or
(4) The evidence indicates that there is a material issue of fact, not requiring an expert opinion, bearing on liability for consideration by a court or jury.
(b) If the review panel's finding is that set forth in subdivision (2), subsection (a) of this section, the panel may determine whether the claimant suffered any disability or impairment and the degree and extent thereof.
(c) The opinion shall be in writing and shall be signed by all panelists who agree therewith. Any member of the panel may note his or her dissent. All opinions shall be mailed to the claimant and the health care provider within five days of the date of their rendering.
§55-7D-11. Limitation on panel opinion.
Unless the parties otherwise agree, any opinion of the panel shall be rendered no later than six months from the designation of the panel unless the chairman extends the period one time, not to exceed ninety days, upon a showing of extraordinary circumstances. If the opinion of the panel is not rendered within the time provided, the claimant shall be free to pursue his or her common-law remedies and any panel opinion rendered subsequently shall be inadmissible as evidence unless the failure of the panel to render a decision within the time provided was caused by delay on the claimant's part.
§55-7D-12. Admissibility of opinion as evidence; appearance of
panel members as witnesses; immunity from civil liability.

An opinion of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but the opinion may not be conclusive and either party shall have the right to call, at his or her cost, any member of the panel, except the chairman, as a witness. If called, each witness shall be required to appear and testify. The panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this chapter.
§55-7D-13. Notice of claim to toll statute of limitations; when
notice of claim or request for review deemed given.

The giving of notice of a claim pursuant to section two of this article shall toll the applicable statute of limitations for and including a period of one hundred twenty days from the date the statute of limitations would otherwise run, or sixty days following issuance of any opinion by the medical review panel, whichever is later. A notice of rescission of a request for a medical malpractice review panel or notice of a determination by the chief justice of the supreme court of appeals of West Virginia granting or denying a request shall toll the applicable statute of limitations for and including a period of sixty days following the giving of the notice.
The notice of a claim pursuant to section two of this article or the request for review of the claim by a medical review panel shall be deemed to be given when delivered or mailed by registered or certified mail to the appropriate claimant or health care provider at his office, residence or last known address.
The provisions of this section shall apply to all causes of action arising without regard to the date the cause of action arose, except to the extent that any cause of action was barred by the applicable statute of limitations.
§55-7D-14. Per diem and expenses of panel.
Each member of the medical review panel shall be reimbursed for his or her actual and necessary expenses and shall be paid at a rate of fifty dollars per diem for work performed as a member of the panel exclusive of time involved if called as a witness to testify in court. Per diem and expenses of the panel shall be borne by the parties in such proportions as may be determined by the chairman in his discretion.
§55-7D-15. Rules.
The chief justice of the supreme court of appeals of West Virginia shall promulgate all necessary rules to carry out the provisions of this chapter.
§55-7D-16. Arbitration of medical malpractice claims.
(a) Persons desiring to enter into an agreement to arbitrate medical malpractice claims which have arisen or may arise may submit matters to arbitration.
(1) An agreement to submit matters to arbitration shall be binding upon the parties, within a period of at least sixty days after the termination of health care, if the terms of the agreement allow the patient or claimant, or his or her guardian, committee or personal representative to: (A) Withdraw from the agreement; and (B) decline to submit any matter to arbitration then or thereafter in controversy.
(2) An agreement to submit matters shall be binding upon the parties, within a period of at least sixty days after the appointment and qualification of the guardian, committee or personal representative, if: (A) The patient or claimant is under disability by reason of age and is at the time of termination of health care without a guardian who could take action for him or her; (B) the patient or claimant is insane and without a committee who could take action for him or her; (C) if termination of health care is due to death of the patient or claimant; or (D) if death of the patient or claimant occurs within sixty days after termination of health care.
(b) Proof of agreement to arbitrate and submission of a medical malpractice claim pursuant thereto shall be in accordance with this code, and a medical malpractice panel appointed under this article may be designated to arbitrate the matter, either by the arbitration agreement or by the parties to the agreement.
(c) An insurer of a health care provider shall be bound by the award of an arbitration panel or arbitrators acting pursuant to a good faith submission hereunder to the extent to which it would have been obligated by a judgment entered in an action at law with respect to the matter submitted: Provided, That the insurer has agreed prior to the submission to be bound by the award of the arbitration panel or arbitrators.
§55-7D-17. Effective date of article.
This article shall be effective and apply to all actions as set forth herein, which causes arise on or after the first day of July, one thousand nine hundred ninety-five.




NOTE: The purpose of this bill is to create medical malpractice review panels and also provide for arbitration of such claims in the state of West Virginia.

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