H. B. 2093
(By Delegate Armstead)
[Introduced January 10, 2003
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two 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 two new sections, designated
sections eight-a and eight-b, all relating to medical
professional liability; defining the terms "collateral source"
and "collateral source payments"; providing for the reduction
of judgment awards in medical professional liability actions
of certain collateral source payments made or to be made to
the plaintiff; providing for postverdict determination of
reduction of compensatory damages; eliminating joint, but not
several, liability among multiple defendants in medical
professional liability actions.
Be it enacted by the Legislature of West Virginia:
That sections two 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 two new sections,
designated sections eight-a and eight-b, all to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§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 or 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 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) "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) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(g) "Noneconomic loss" means losses including, but not limited
to, pain, suffering, mental anguish and grief.
(h) "Collateral source" means: (1) The United States Social
Security Act, as amended; (2) any state or federal disability,
workers' compensation, 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.
(i) "Collateral source payments" means money paid or payable
by collateral sources for losses or expenses, 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 in this state.
§55-7B-8a. Reduction in compensatory damages for collateral
source payments.
Notwithstanding any other provision of this code, in all
medical professional liability actions, regardless of the theory of
liability under which they are commenced, the total amount of
compensatory damages awarded to a plaintiff under such action shall
be reduced, in accordance with section eight-b of this article, by
any collateral source payments made or to be made to the plaintiff,
except insurance for which the plaintiff, spouse of the plaintiff,
or parent of the plaintiff, has paid a premium, insurance that is
subject to a right of subrogation, workers' compensation benefits
that are subject to a right of subrogation, or insurance that has
any other obligation of repayment.
§55-7B-8b. Postverdict determination of reduction in compensatory
damages.
The reduction in compensatory damages required under section
eight-a of this article shall be determined by the court after the verdict and before judgment is entered. Reduction may be made only
if the collateral source payments are compensation for the same
damages for which recovery is sought in the action. A plaintiff
who has received or is to receive collateral source payments may
introduce evidence before the court, but not at trial, of any of
the following: (a) Any amount which the plaintiff has paid or
contributed to secure his or her right to any such collateral
source payments; (b) that any recovery by the plaintiff is subject
to a lien by a collateral source; (c) that a provider of such
collateral source payments has a statutory right of recovery
against the plaintiff for reimbursement of such payments; or (d)
that the provider of such collateral source payments has a right of
subrogation to the rights of the plaintiff.
After considering the evidence of collateral source introduced
by any party, the court shall make a determination as to the amount
by which a plaintiff's compensatory damages will be reduced by any
such collateral source payment.
§55-7B-9. Joint and several liability.
(a) In the trial of a medical professional liability action
against a health care provider involving multiple defendants, the
jury shall be required to 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 may not enter
judgement
judgment of joint and several liability against
every any
defendant.
which bears twenty-five percent or more of the
negligence attributable to all defendants. 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.
(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 defendant 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.
(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.
Note: The purpose of this bill is to provide that judgment
awards in medical professional liability actions be reduced by the
amount of certain collateral source benefits received by the
claimant or to which the claimant is entitled. The bill also
eliminates joint, but not several liability among multiple
defendants in actions for medical professional liability.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Sections 55-7B-8a and 55-7B-8b are new; therefore,
strike-throughs and underscoring have been omitted.
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