Senate Bill No. 72
(By Senators Jenkins, Oliverio, McCabe, Ross, Guills,
Facemyer, McKenzie, Harrison, Sprouse, Rowe, Boley, Minear,
Weeks, Smith and Deem)
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[Introduced January 8, 2003; referred to the Committee on Banking
and Insurance and then to the committee on the Judiciary.]
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A BILL to amend and reenact sections one, two, three, six, seven,
eight and nine, article seven-b, chapter fifty-five of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; and to further amend said article by adding
thereto seven new sections, designated sections two-a, ten,
eleven, twelve, thirteen, fourteen and fifteen, all relating
to medical professional liability; modifying certain statutory
and common law procedures and causes of action relating to
medical professional liability actions; defining terms;
creating exclusive remedies for action against health care
providers; establishing new elements of proof; modifying
notice requirements; modifying the qualifications for experts
who testify in medical professional liability actions;
limiting liability for noneconomic loss; eliminating joint,
but not several, liability among multiple defendants in medical professional liability actions; reduction in damage
awards for certain collateral source payments to claimants;
providing for the periodic payment of certain damage awards;
limiting liability for trauma care; providing consumer
safeguards for attorney contingent fee arrangements;
establishing effective dates; and providing for severability.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, six, seven, eight and nine,
article seven-b, chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said article be further amended by adding
thereto seven new sections, designated sections two-a, ten, eleven,
twelve, thirteen, fourteen and fifteen, all to read as follows:
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 patients 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
and health
care facilities
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, the health care
facilities
and the injured without the full benefit of professional
liability insurance coverage;
further the courts have sought to expand the potential liability of health care providers and health
care facilities beyond the scope of forseeability and the risks
insured by permitting causes of action for those who have no
relationship to the providers and facilities, which expansion is
contrary to the public policy of this state;
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 and health care facilities. Further contributing factors
include the expense of lengthy litigation and the costs of
defending nonmeritorious or de minimus claims which increase the
costs of litigation and professional medical liability insurance.
That in the year two thousand two, the cost of such liability
insurance coverage has again risen dramatically especially when the
cost is compared with premiums charged in neighboring states, and
that the increasing unavailability of professional liability
coverage has resulted in the state providing professional liability
insurance coverage; and that the unavailability and high costs of
professional liability coverage have resulted in the state's loss
of physicians, which, together with other costs and taxation incurred by health care providers and health care facilities in
this state, have created a competitive disadvantage in this state
compared with neighboring states, in attracting and retaining
quality physicians and other health care providers.
The Legislature further finds that medical liability issues
have also reached critical proportions for the state's long term
health care facilities as: (1) Medical liability insurance
premiums for nursing homes in West Virginia have increased
dramatically in the past five years; (2) the number of claims per
bed has increased significantly over that period; (3) the cost to
the state Medicaid program as a result of such higher premiums has
grown considerably in this period; (4) current medical liability
premium costs for some nursing homes constitute a significant
percentage of the amount of coverage; (5) these high costs are
leading some facilities to consider dropping medical liability
insurance coverage altogether; and (6) the medical liability
insurance crisis for nursing homes may soon result in a reduction
of the number of beds available to citizens in need of long-term
care. The Legislature finds that medical liability issues have
also reached critical proportions for the state's long-term health
care facilities as: (1) Medical liability insurance premiums for
nursing homes in West Virginia have increased two thousand percent
from 1995 to 2001; (2) the number of claims per bed has increased
approximately seven hundred percent over that period; (3) the cost to the state Medicaid program as a result of such higher premiums
has tripled in this period; (4) current premium costs for a large
nursing home can constitute over a third of its coverage of one
million dollars; (5) these high costs are leading some facilities
to consider dropping medical insurance coverage altogether; and (6)
the medical liability insurance crisis for nursing homes may soon
result in a reduction of the number of beds available to citizens
in need of long term care.
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,
in the
formation of a physician's mutual insurance company
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) "Collateral source" means: (1) The United States Social
Security Act, as amended; (2) any state or federal health,
sickness, accident, income-disability or workers' compensation paid benefit, or other act designed to provide income replacement,
medical, or other benefits; (3) any accident, health or sickness,
income or wage replacement insurance, income disability insurance,
casualty or property insurance (including automobile and
homeowners' insurance), or any other insurance except life
insurance; (4) any contract or agreement of any group,
organization, partnership, or corporation to provide, pay for, or
reimburse the cost of medical, hospital, dental, or other health
care services or provide similar benefits; or (5) 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.
(b) "Collateral source payments" means money paid or payable
by collateral sources for losses or expenses, past and future,
including but not limited to, property damage, wage loss, medical
costs, rehabilitation costs, services and other costs incurred by
or on behalf of a plaintiff for which that plaintiff is claiming
recovery through a tort action commenced in any of the courts or
administrative tribunals in this state.
(a) (c) "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) (d) "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) (e) "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.
(f) "Medical injury" means injury or death to a patient
arising or resulting from the rendering or failure to render health
care.
(d) (g) "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) (h) "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.
(g) (i) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental anguish and grief.
(f) (j) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(k) "Traumatic injury" means any acute injury or condition
which, according to standardized criteria for triage, involves a
significant risk of death or the precipitation of complications or
disabilities.
§55-7B-2a. Exclusive remedy.
The cause of action for medical professional liability is the
exclusive remedy for any patient alleging injury resulting from
health care services rendered, or which should have been rendered,
by a health care provider or a health care facility to a patient.
No other provision of this code or the common law of West Virginia
may form the basis for a cause of action against a health care
provider or a health care facility by any person or patient
alleging injury resulting from health care services rendered, or
which should have been rendered, by a health care provider or
health care facility to a patient.
§55-7B-3. Elements of proof.
The following are necessary elements of proof that an injury
or death resulted from the failure of a health care provider to
follow the accepted standard of care:
(a) The health care provider failed to exercise that degree of
care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which
the health care provider belongs acting in the same or similar
circumstances; and
(b) Such The failure was a the proximate cause of the injury
or death of the patient.
(c) In order to recover damages against a health care provider
or health care facility under a theory that treatment rendered or
which should have been rendered deprived the patient of a chance of
recovery, or increased the risk of harm to the patient, the patient
must prove by clear and convincing evidence that the treatment
rendered or which should have been rendered would have resulted in
a substantial probability, meaning a greater than fifty percent
chance, the patient would have had an improved recovery or would
have survived.
§55-7B-6. Prerequisites for filing an action against a health care
provider; procedures; sanctions.
(a) Notwithstanding any other provision of this code, no
person may file a medical professional liability action against any
health care provider without complying with the provisions of this
section.
(b) At least thirty days prior to the filing of a medical
professional liability action against a health care provider, the
claimant shall serve by certified mail, return receipt requested,
a notice of claim
on each health care provider who claimant will join in litigation.
The notice of claim shall include a statement
of the theory or theories of liability upon which a cause of action
may be based
and a list of all health care providers and health
care facilities to whom notices of claim are being sent,
together
with a screening certificate of merit. The certificate of merit
shall be executed under oath by a health care provider qualified as
an expert under the West Virginia rules of evidence and shall state
with particularity: (1) The expert's familiarity with the
applicable standard of care in issue; (2) the expert's
qualifications; (3) the expert's opinion as to how the applicable
standard of care was breached; and (4) the expert's opinion as to
how the breach of the applicable standard of care resulted in
injury or death. A separate screening certificate of merit must be
provided for each health care provider against whom a claim is
asserted. The person signing the screening certificate shall have
no financial interest in the underlying claim, but may participate
as an expert witness in any judicial proceeding. Nothing in this
subsection may be construed to limit the application of rule
fifteen of the rules of civil procedure.
(c) Notwithstanding any provision of this code, if a claimant
or if represented by counsel, the claimant's counsel, believes that
no screening certificate of merit is necessary because the cause of
action is based upon a well-established legal theory of liability
which does not require expert testimony supporting a breach of the applicable standard of care, the claimant or if represented by
counsel, the claimant's counsel, shall file a statement
specifically setting forth the basis of the alleged liability of
the health care provider in lieu of a screening certificate of
merit.
(d) If a claimant or his or her counsel has insufficient time
to obtain a screening certificate of merit prior to the expiration
of the applicable statute of limitations, the claimant shall comply
with the provisions of subsection (b) of this section except that
the claimant or his or her counsel shall furnish the health care
provider with a statement of intent to provide a screening
certificate of merit within sixty days of the date the health care
provider receives the notice of claim.
(e) Any health care provider who receives is served a notice
of claim pursuant to the provisions of this section must may
respond, in writing, to the claimant within thirty days of receipt
of the claim or within thirty days of receipt of the certificate of
merit if the claimant is proceeding pursuant to the provisions of
subsection (d) of this section.
The response may state that the
health care provider has a bona fide defense and the name of the
health care provider's counsel, if any.
(f) Upon receipt of the notice of claim or of the screening
certificate, if the claimant is proceeding pursuant to the
provisions of subsection (d) of this section, the health care provider is entitled to prelitigation mediation before a qualified
mediator upon written demand to the claimant.
Service of the
notice of claim must be made in accord with the West Virginia Rules
of Civil Procedure, Rule 4.
(g) If the health care provider demands mediation pursuant to
the provisions of subsection (f) of this section, the mediation
shall be concluded within forty-five days of the date of the
written demand. The mediation shall otherwise be conducted
pursuant to rule 25 of the trial court rules, unless portions of
the rule are clearly not applicable to a mediation conducted prior
to the filing of a complaint or unless the supreme court of appeals
promulgates rules governing mediation prior to the filing of a
complaint. If mediation is conducted, the claimant may depose the
health care provider before mediation or take the testimony of the
health care provider during the mediation.
(h) The failure of a health care provider to timely respond to
a notice of claim, in the absence of good cause shown, constitutes
a waiver of the right to request pre-litigation mediation. Except
as otherwise provided in this subsection, any statute of
limitations applicable to a cause of action against a health care
provider upon whom notice was served for alleged medical
professional liability shall be is tolled from the date of the
mailing service of a notice of claim to thirty days following
receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days
from the receipt by the claimant of written notice from the
mediator that the mediation has not resulted in a settlement of the
alleged claim and that mediation is concluded, whichever last
occurs. If a claimant has sent a notice of claim relating to any
injury or death to more than one health care provider, any one of
whom has demanded mediation, then the statute of limitations shall
be is tolled with respect to, and only with respect to, those
health care providers to whom the claimant sent a notice of claim
to thirty days from the receipt of the claimant of written notice
from the mediator that the mediation has not resulted in a
settlement of the alleged claim and that mediation is concluded.
(i) Notwithstanding any other provision of this code, a notice
of claim, a health care provider's response to any notice claim, a
certificate of merit and the results of any mediation conducted
pursuant to the provisions of this section are confidential and are
not admissible as evidence in any court proceeding unless the
court, upon hearing, determines that failure to disclose the
contents would cause a miscarriage of justice.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure
to meet said the standard, if at issue, shall be established in
medical professional liability cases by the plaintiff by testimony
of one or more knowledgeable, competent expert witnesses if required by the court. Such The expert testimony may only be
admitted in evidence if the foundation, therefor, is first laid
establishing that: (a) (i) The opinion is actually held by the
expert witness; (b) (ii) the opinion can be testified to with
reasonable medical probability; (c) (iii) such the expert witness
possesses professional knowledge and expertise coupled with
knowledge of the applicable standard of care to which his or her
expert opinion testimony is addressed; (d) (iv) such the expert
maintains a current license to practice
medicine,
with the
appropriate licensing authority of any state, in the same or
substantially similar medical field as the defendant health care
provider; provided that the expert's license has not been revoked
or suspended in the past three hundred sixty-five days in any
state; in one of the states of the United States; and (e) (v) such
the expert is engaged or qualified in the same or substantially
similar medical field as the defendant health care provider;
and
(vi) the expert devotes three fourths of his or her professional
time annually to the active clinical practice in his or her medical
field of specialty or to teaching in his or her medical field in an
accredited university.
(b) Nothing contained in this section may be construed to
limit a trial court's discretion in determining the competency or
lack of competency on a ground not specifically enumerated herein.
§55-7B-8. Limit on liability for noneconomic loss.
In any medical professional liability action brought against
a health care provider, the maximum amount recoverable as damages
for noneconomic loss shall not exceed one million dollars and the
jury may be so instructed:
Provided, That for actions filed during
calendar year two thousand three, the maximum amount recoverable as
damages for noneconomic loss shall not exceed two hundred fifty
thousand dollars: Provided, however, That the maximum amount of
two hundred fifty thousand dollars recoverable for noneconomic loss
shall then increase by ten thousand dollars a year beginning in
calendar year two thousand four
.
§55-7B-9. Joint and several liability.
(a) In the trail of a medical professional liability action
against a health care provider involving multiple defendants, the
jury shall be required to must report its findings to the court on
a form provided by the court which contains each of the possible
verdicts as determined by the court.
(b) In every medical professional liability action, the court
shall make findings as to the total dollar amount awarded as
damages to each plaintiff. The court shall enter judgement of
joint and several liability against every defendant which bears
twenty-five percent or more of the negligence attributable to all
defendants.
The court may not enter joint and several liability
against any defendant.
The court shall enter judgment of several,
but not joint, liability against and among all defendants which bear less than twenty-five percent of the negligence attributable
to all defendants
in accordance with the percentage of negligence
attributable to each defendant. To determine the amount of
judgment to be entered against each defendant, the court, with
regard to each defendant, shall multiply the total amount of
damages recoverable by the plaintiff by the percentage of each
defendant's fault and that amount is the maximum recoverable
against that defendant.
(c) Each defendant against whom a judgement of joint and
several liability is entered in a medical professional liability
action pursuant to subsection (b) of this section is liable to each
plaintiff for all or any part of the total dollar amount awarded
regardless of the percentage of negligence attributable to him.
A right of contribution exists in favor of each defendant who has
paid to a plaintiff more than the percentage of the total dollar
amount awarded attributable to him relative to the percentage of
negligence attributable to him. The total amount of recovery for
contribution is limited to the amount paid by the defendant to a
plaintiff in excess of the percentage of the total dollar amount
awarded attributable to him relative to the percentage of
negligence attributable to him. No right of contribution exists
against any defendent who entered in to a good faith settlement
with the plaintiff prior to the jury's report of its findings to
the court or the court's findings as to the total dollar amount awarded as damages.
In assessing percentages of fault, the trier
of fact shall consider the fault of all persons who contributed to
the alleged damages regardless of whether that person was or could
have been named as a party to the suit. Fault of a nonparty may be
considered if the plaintiff entered into a settlement agreement
with the nonparty or if a defendant party gives notice no later
than sixty days before the date of trial that a nonparty was wholly
or partially at fault. The notice shall be given by filing a
pleading or discovery response in the action designating such
nonparty and setting forth the nonparty's name and last-known
address, or the best identification of the nonparty which is
possible under the circumstances, together with a brief statement
of the basis for believing the nonparty is at fault. In all
instances where a nonparty is assessed a percentage of fault, any
recovery by a plaintiff shall be reduced in proportion to the
percentage of fault chargeable to the nonparty. Where a plaintiff
has settled with a party or nonparty before verdict, that
plaintiff's recovery will be reduced by the amount of the
settlement or in proportion to the percentage of fault assigned to
the settling party or nonparty, whichever is greater. The
plaintiff shall promptly and fully inform all other persons against
whom liability is asserted of the terms of any such settlement.
(d) Where a right of contribution exists in a medical
professional liability action pursuant to subsection (c) of this section, the findings of the court or jury as to the percentage of
negligence and liability of the several defendants to the plaintiff
shall be binding among such defendants as determining their rights
of contribution.
Nothing in this article is meant to eliminate or
diminish any defenses or immunities which exist as of the effective
date of this article, except as expressly noted in this article.
(e) Nothing in this article is meant to preclude a person from
being held responsible for the portion of comparative fault
assessed against another person who is acting as an agent or
servant of that person, or if the fault of the other person is
otherwise imputable or attributable to that person.
(f) Assessments of percentages of fault for nonparties are
used only as a vehicle for accurately determining the fault of
named parties. Where fault is assessed against nonparties,
findings of fault may not subject any nonparty to liability in that
or any other action, or be introduced as evidence of liability or
for any other purpose in any other action.
(g) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating the percentage of
the total fault that is allocated to each party and nonparty
pursuant to the provisions of this article. For this purpose, the
court may determine that two or more persons are to be treated as a single person.
§55-7B-10. Reduction in compensatory damages for collateral
sources payments.
(a) Notwithstanding any other provision of this code to the
contrary, in any medical professional liability action in which a
plaintiff seeks recovery for expenses for medical care,
rehabilitation services, loss of earnings, loss of earning capacity
or other economic losses, and in which liability is admitted or is
determined by the trier of fact and damages are awarded, evidence
to establish that the expenses or losses were paid or are payable,
in whole or in part, by a collateral source shall be admissible to
the court in which the action was brought after a verdict for the
plaintiff and before a judgment is entered on the verdict.
(b) The court shall determine the amount of the plaintiff's
expenses or losses that have been paid or are payable by a
collateral source. There may be no reduction for collateral
sources for which a subrogation or reimbursement right has been
perfected. The total amount of the collateral sources determined
by the court shall then be offset or reduced by a sum equal to the
premiums or portion of premiums paid for the particular benefit by
the plaintiff or the plaintiff's family.
(c) If the court determines that all or part of the
plaintiff's expenses or losses have been paid or are payable by a
collateral source, the court shall reduce that portion of the judgment that represents damages paid or payable by a collateral
source and as determined pursuant to subsection (b) of this
section. Any reduction made by the court may not exceed the amount
of the judgment for economic loss or that portion of the verdict
that represents damages paid or payable by a collateral source.
(d) Benefits from a collateral source may not be considered
payable or receivable unless the court makes a determination that
there is a previously existing contractual or statutory obligation
on the part of the collateral source to pay the benefits.
(e) Notwithstanding any other provision of this code to the
contrary, in any medical professional liability action, within ten
days after a verdict for the plaintiff, the plaintiff's attorney
shall send notice of the verdict by registered mail to all persons
entitled by contract to a lien against the proceeds of the
plaintiff's recovery. If a contractual lien holder does not
exercise the lien holder's right of subrogation within twenty days
after receipt of the notice of the verdict, the lien holder loses
the right of subrogation. This subsection applies only to
contracts executed or renewed on or after the first day of July,
two thousand three.
(f) A provider of collateral sources that has a right of
subrogation or reimbursement that has complied with the
requirements of this section has a right of reimbursement from a
claimant to whom it has provided collateral sources if the claimant has recovered all or part of collateral sources from a tortfeasor.
The provider's right of reimbursement is limited to the actual
amount of collateral sources paid to the claimant and recovered
from a tortfeasor, minus the provider's pro rata share of costs and
attorney's fees incurred by the plaintiff. In determining the
provider's pro rata share of costs and attorney's fees, the
provider shall have deducted from its recovery a percentage amount
equal to the percentage of the judgment or settlement which is for
costs and attorney's fees.
(g) Reimbursement of a collateral source provider pursuant to
this section satisfies the collateral source provider's right of
subrogation or reimbursement. The provider has no right of
subrogation or reimbursement for collateral sources payments made
after the date of waiver, settlement or judgment. A collateral
source provider claiming a right of subrogation or reimbursement
under this section shall cooperate with the plaintiff as is
reasonably necessary to determine the nature and extent of the
subrogation claim. The failure of the provider to cooperate may be
taken into account by the court in determining the right to or the
amount of the reimbursement asserted.
(h) In the event that the fees for legal services provided to
the plaintiff are based on a percentage of the amount of money
awarded to the plaintiff, the percentage shall be based on the net
amount of the award as reduced by the court pursuant to the provisions of this section. Reasonable attorney's fees recovered
from lien holders or subrogors shall be awarded by the court.
§55-7B-11. Periodic payment of damages.
(a) In a medical professional liability action, the trier of
fact shall make a determination with separate findings for each
claimant specifying the amount of each of the following:
(1) Past damages for:
(i) Medical and other related expenses in a lump sum;
(ii) Loss of earnings in a lump sum; and
(iii) Noneconomic loss in a lump sum.
(2) Future damages for:
(i) Medical and other related expenses by year;
(ii) Loss of earnings or earning capacity in a lump sum; and
(iii) Noneconomic loss in a lump sum.
(b) Except for future medical and other related expenses
totaling less than one hundred thousand dollars for a single
claimant as provided in subsection (h) of this section, future
damages for medical and other related expenses shall be paid as
periodic payments after reduction to reflect payment of the
proportionate share of counsel fees and costs based upon the
present value of the future damages awarded pursuant to this
subsection. The trier of fact may vary the amount of periodic
payments for future damages for medical and other related expenses
from year to year for the expected life of the claimant to account for different annual expenditure requirements, including the
immediate needs of the claimant. The trier of fact may also
provide for purchase and replacement of medically necessary
equipment in the years that expenditures will be required.
(c) The trier of fact may incorporate into periodic payment
schedules any future medical expense award adjustments to account
for reasonably anticipated inflation and medical care improvements
as presented by competent evidence.
(d) Future damages for medical and other related expenses
shall be paid in the years that the trier of fact finds they will
accrue. Unless the court orders or approves a different schedule
for payment, the annual amounts due must be paid in equal quarterly
installments, rounded to the nearest dollar. Each installment is
due and payable on the first day of the month in which it accrues.
(e) Interest does not accrue on a periodic payment before
payment is due. If the payment is not made on or before the due
date, the legal rate of interest accrues as of that date.
(f) Liability to a claimant for periodic payments not yet due
for medical and other related expenses terminates upon the
claimant's death.
(g) Each party liable for all or a portion of the judgment
shall provide funding for the awarded periodic payments, separately
or together with one or more others, by means of an annuity
contract, trust or other qualified funding plan, which is approved by the court. The state insurance commissioner shall annually
publish a list of insurers designated by the commissioner as
qualified to participate in the funding of periodic payment
judgments.
(h) Future damages for medical and other related expenses may
not be awarded in periodic payments if the claimant objects at
least one hundred days prior to trial and stipulates that the total
amount of the future damages for medical and other related
expenses, without reduction to present value, does not exceed one
hundred thousand dollars.
(i) Effect of full funding. - If full funding of an award
pursuant to this section has been provided, the judgment is
discharged and any outstanding liens as a result of the judgment
are released.
(j) Retained jurisdiction. -- The court which enters judgment
for periodic payments retains jurisdiction to enforce the judgment
and to resolve related disputes.
55-7B-12. Limit on liability for trauma care.
(a) Any health care facility employee or agent of a health
care facility who renders care or assistance to patients; health
care provider who renders care or assistance in a health care
facility, whether or not the care or assistance was rendered
gratuitously or for a fee; or resident physician or dentist,
intern, fellow or medical student or other person enrolled in a program of undergraduate or graduate medical education; that in
good faith renders care or assistance necessitated by a traumatic
injury demanding immediate medical attention, for which the patient
enters the health care facility, may not be held liable for more
than five hundred thousand dollars in civil damages, exclusive of
interest, computed from the date of judgment, to or for the benefit
of any claimant arising out of any act or omission in rendering
that care or assistance if the care or assistance is rendered in
good faith and in a manner not amounting to reckless, willful or
wanton conduct.
(b) The limitation on liability provided pursuant to
subsection (a) of this section does not apply to any act or
omission in rendering care or assistance for any medical condition
that is unrelated to the original traumatic injury: Provided, That
in any action for medical professional liability based upon care or
assistance rendered pursuant to the provisions of subsection (a) of
this section, there is a rebuttable presumption that any medical
condition which arises during follow-up care of the patient was
related to the original traumatic injury and the limitation on
liability provided by subsection (a) of this section applies to
that medical condition.
§55-7B-13. Contingent fee arrangement.
(a) An attorney may not contract for or collect a contingency
fee for representing any person seeking damages in connection with an action for injury or damage against a health care provider or
health care facility based upon alleged medical professional
liability in excess of the following limits: (i) Forty percent of
the first fifty thousand dollars recovered; (ii) thirty-three and
one-third percent of the next fifty thousand dollars recovered;
(iii) twenty-five percent of the next five hundred thousand dollars
recovered; and (iv) fifteen percent of any amount on which the
recovery exceeds six hundred thousand dollars. The limitations
apply regardless of whether the recovery is by settlement,
arbitration or judgment or whether the person for whom the recovery
is made is a responsible adult, an infant or a person of unsound
mind.
(b) If periodic payments are awarded to the plaintiff pursuant
to the provisions of section eleven of this article, the court
shall place a total value on these payments based upon the
projected life expectancy of the plaintiff and include this amount
in computing the total award from which attorney's fees are
calculated under this section.
(c) For purposes of this section: "Recovered" means the net
sum recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim and costs
of medical care incurred by the plaintiff. The attorney's office
overhead costs or charges are not deductible disbursements or costs
for this purpose.
(d) An attorney who contracts to represent a client on a
contingency fee basis shall, at the time the contract is entered
into, provide a duplicate copy of the contract, signed by both the
attorney and the client, or the client's guardian or
representative, to the plaintiff, or to the client's guardian or
representative. The contract must be in writing and must include,
but is not limited to, all of the following: (1) A statement of
the contingency fee rate that the client and attorney have agreed
upon; (2) a statement as to how disbursements and costs incurred
in connection with the prosecution or settlement of the claim will
affect the contingency fee and the client's recovery; (3) a
statement as to what extent, if any, the client could be required
to pay any compensation to the attorney for related matters that
arise out of their relationship not covered by their contingency
fee contract. This may include any amounts collected for the
plaintiff by the attorney; (4) a statement that the fee is not set
by law but is negotiable between attorney and client; and (5) a
statement that the rates set forth in this section are the maximum
limits for the contingency fee agreement, and that the attorney and
client may negotiate a lower rate.
(e) Failure to comply with any provision of this section
renders the agreement voidable at the option of the plaintiff, and
the attorney shall then be entitled to collect a reasonable fee.
(f) This section does not apply to contingency fee contracts for the recovery of workers' compensation benefits.
This section shall become operative ninety days from passage.
§55-7B-14. 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.
(b) 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.
§55-7B-15. Severability.
(a) If any provision of this article as enacted during the
first extraordinary session of the Legislature, 1986, in House Bill
149, or as enacted during the regular session of the Legislature,
1986, in Senate Bill 714, or the application thereof to any person
or circumstance is held invalid, such invalidity shall not affect
other provisions or applications of this article, and to this end,
the provisions of this article are declared to be severable.
(b) If any provision of the amendments to section five of this
article, any provision of new section six-d of this article or any
provision of the amendments to section eleven, article six, chapter
fifty-six of this code as provided in House Bill 601, enacted
during the sixth extraordinary session of the Legislature, two
thousand one, is held invalid, or the application thereof to any
person is held invalid, then, notwithstanding any other provision
of law, every other provision of said House Bill 601 shall be
deemed invalid and of no further force and effect.
(c) If any provision of the amendments to sections six or ten
of this article or any provision of new sections six-a, six-b or
six-c of this article as provided in House Bill 60l, enacted during
the sixth extraordinary session of the Legislature, two thousand
one, is held invalid, such invalidity shall not affect other
provisions or applications of this article, and to this end, such
provisions are deemed severable.
NOTE: The purpose of this bill is to maintain and stabilize
the health care delivery system in this state. The bill: (1) Adds
an additional requirement for admissibility of testimony of an
expert witness on the standard of care by requiring that such
testimony may only be by an appropriately licensed expert who
either devotes three fourths of his or her professional time to the
clinical practice of medicine or teaches in his or her field in an
accredited university; (2) limits the liability for noneconomic
loss to $250,000; (3) eliminates joint, but not several, liability
among multiple defendants in actions for medical professional
liability; (4) allows for reduction in judgments for compensatory
damages for certain collateral source payments; (5) provides for
periodic payments for future damages awards; (6) limits liability
for trauma care; and (7) places consumer safeguards on attorney contingent fee arrangements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Sections 14 and 15 are previous sections 10 and 11. Sections
2a, 10, 11, 12 and 13 are new; therefore, strike-throughs and
underscoring have been omitted.
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