WEST virginia Legislature
2017 regular session
By Delegates Lane, Cowles,
Criss, G. Foster, Hollen, Kessinger, Moore and Sobonya
[
to the Committee on Health and Human Resources then the Judiciary.
A BILL to amend and
reenact §55-7B-2, §55-7B-4, §55-7B-10 and §55-7B-11 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding thereto a new
section, designated §55-7B-9e, all relating to Medical Professional Liability;
defining the term “occurrence;” reducing the time period in which a cause of
action can be brought against nursing homes or assisted living facilities; providing
venue preference; establishing an attorney’s fee schedule based upon amount
recovered; establishing the effective date; and providing for severability.
Be it enacted by the
Legislature of West Virginia:
That §55-7B-2, §55-7B-4,
§55-7B-10 and §55-7B-11 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding thereto a new
section, designated §55-7B-9e, all to read as follows:
ARTICLE 7B. MEDICAL
PROFESSIONAL LIABILITY.
§55-7B-2. Definitions.
(a) “Board” means the state
Board of Risk and Insurance Management.
(b) “Collateral source”
means a source of benefits or advantages for economic loss that the claimant
has received from:
(1) Any federal or state
act, public program or insurance which provides payments for medical expenses,
disability benefits, including workers’ compensation benefits, or other similar
benefits. Benefits payable under the Social Security Act and Medicare are not
considered payments from collateral sources except for Social Security
disability benefits directly attributable to the medical injury in question;
(2) Any contract or
agreement of any group, organization, partnership or corporation to provide,
pay for or reimburse the cost of medical, hospital, dental, nursing,
rehabilitation, therapy or other health care services or provide similar
benefits, but excluding any amount that a group, organization, partnership,
corporation or health care provider agrees to reduce, discount or write off of
a medical bill;
(3) Any group accident,
sickness or income disability insurance, any casualty or property insurance,
including automobile and homeowners’ insurance, which provides medical
benefits, income replacement or disability coverage, or any other similar
insurance benefits, except life insurance, to the extent that someone other
than the insured, including the insured's employer, has paid all or part of the
premium or made an economic contribution on behalf of the plaintiff; or
(4) 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.
(c) “Consumer Price Index”
means the most recent Consumer Price Index for All Consumers published by the
United States Department of Labor.
(d) “Emergency condition”
means any acute traumatic injury or acute medical condition which, according to
standardized criteria for triage, involves a significant risk of death or the
precipitation of significant complications or disabilities, impairment of
bodily functions or, with respect to a pregnant woman, a significant risk to
the health of the unborn child.
(e) “Health care” means:
(1) Any act, service or
treatment provided under, pursuant to or in the furtherance of a physician's plan
of care, a health care facility's plan of care, medical diagnosis or treatment;
(2) Any act, service or
treatment performed or furnished, or which should have been performed or
furnished, by any health care provider or person supervised by or acting under
the direction of a health care provider or licensed professional for, to or on
behalf of a patient during the patient's medical care, treatment or
confinement, including, but not limited to, staffing, medical transport,
custodial care or basic care, infection control, positioning, hydration,
nutrition and similar patient services; and
(3) The process employed by
health care providers and health care facilities for the appointment,
employment, contracting, credentialing, privileging and supervision of health
care providers.
(f) “Health care facility”
means any clinic, hospital, pharmacy, nursing home, assisted living facility,
residential care community, end-stage renal disease facility, home health
agency, child welfare agency, group residential facility, behavioral health
care facility or comprehensive community mental health center,
intellectual/developmental disability center or program, or other ambulatory
health care facility, in and licensed, regulated or certified by the State of
West Virginia under state or federal law and any state-operated institution or
clinic providing health care and any related entity to the health care
facility.
(g) “Health care provider”
means a person, partnership, corporation, professional limited liability
company, health care facility, entity 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, physician assistant, advanced practice registered nurse, hospital,
health care facility, dentist, registered or licensed practical nurse,
optometrist, podiatrist, chiropractor, physical therapist, speech-language
pathologist, audiologist, occupational
therapist, psychologist, pharmacist, technician, certified nursing assistant,
emergency medical service personnel, emergency medical services authority or
agency, any person supervised by or acting under the direction of a licensed
professional, any person taking actions or providing service or treatment
pursuant to or in furtherance of a physician's plan of care, a health care
facility’s plan of care, medical diagnosis or treatment; or an officer,
employee or agent of a health care provider acting in the course and scope of
the officer's, employee's or agent's employment.
(h) “Medical injury” means
injury or death to a patient arising or resulting from the rendering of or
failure to render health care.
(i) “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. It also means other claims that may be
contemporaneous to or related to the alleged tort or breach of contract or
otherwise provided, all in the context of rendering health care services.
(j) “Medical professional
liability insurance” means a contract of insurance or any actuarially sound
self-funding program that pays for the legal liability of a health care
facility or health care provider arising from a claim of medical professional
liability. In order to qualify as medical professional liability insurance for
purposes of this article, a self-funding program for an individual physician
must meet the requirements and minimum standards set forth in section twelve of
this article.
(k) “Noneconomic loss”
means losses, including, but not limited to, pain, suffering, mental anguish
and grief.
(l) “Occurrence” means
any and all injuries to a patient arising from health care rendered by a
healthcare facility or a healthcare provider and includes any continuing,
additional or follow-up care provided to that patient for reasons relating to
the original healthcare provided, regardless if the injuries arise during a
single date or multiple dates of treatment, single or multiple patient
encounters, or a single admission or a series of admissions.
(l) (m) “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.
(m) (n) “Plaintiff” means a patient or
representative of a patient who brings an action for medical professional
liability under this article.
(n) (o) “Related entity” means any corporation,
foundation, partnership, joint venture, professional limited liability company,
limited liability company, trust, affiliate or other entity under common
control or ownership, whether directly or indirectly, partially or completely,
legally, beneficially or constructively, with a health care provider or health
care facility; or which owns directly, indirectly, beneficially or
constructively any part of a health care provider or health care facility.
(o) (p) “Representative” means the spouse, parent,
guardian, trustee, attorney or other legal agent of another.
§55-7B-4. Health care
injuries; limitations of actions; exceptions; venue.
(a) A cause of action for
injury to a person alleging medical professional liability against a health
care provider, except a nursing home, assisted living facility or their
related entities, arises as of the date of injury, except as provided in
subsection (b) (c) of this section, and must be commenced within
two years of the date of such injury, or within two year of the date when such
person discovers, or with the exercise of reasonable diligence, should have
discovered such injury, whichever last occurs: Provided, That in no
event shall any such action be commenced more than ten years after the date of
injury.
(b) A cause of action
for injury to a person alleging medical professional liability against a
nursing home, assisted living facility or their related entities arises as of
the date of injury, except as provided in subsection (c) of this section, and
must be commenced within one year of the date of such injury, or within one
year of the date when such person discovers, or with the exercise of reasonable
diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any
such action be commenced more than ten years after the date of injury.
(b) (c) A cause of action for injury to a minor,
brought by or on behalf of a minor who was under the age of ten years at the
time of such injury, shall be commenced within two years of the date of such
injury, or prior to the minor's twelfth birthday, whichever provides the longer
period.
(c) (d) The periods of limitation set forth in
this section shall be tolled for any period during which the health care
provider or its representative has committed fraud or collusion by concealing
or misrepresenting material facts about the injury.
(e) Any medical
professional liability action against a nursing home, assisted living facility
or related entity shall be brought in the circuit court of the county in which
the nursing home, or the assisted living facility, at which the alleged act of
medical professional liability occurred is located, unless otherwise agreed
upon by the nursing home, assisted living facility or related entity and the
plaintiff. Nothing in this subsection shall prohibit a party from removing the
action to federal court.
§55-7B-9e. Fees of
attorney for plaintiff; unlawful charging or receiving of attorney fees.
(a) An attorney shall
not contract for or collect a contingency fee for representing any person
seeking damages in connection with an action brought under this article in
excess of the following limits:
(1) Forty percent of the
first $50,000 recovered;
(2) Thirty-three and
one-third percent of the next $50,000 recovered;
(3) Twenty-five percent
of the next $500,000 recovered; and
(4) Fifteen percent of
any amount by which the recovery exceeds $600,000.
These limitations shall
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 protected person.
(b) 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.
Costs of medical care incurred by the plaintiff are not deductible
disbursements or costs for such purpose.
§55-7B-10. 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.
The amendments to this
article as provided in House Bill 601, enacted during the sixth extraordinary
session of the Legislature, 2001, apply to all causes of action alleging
medical professional liability which are filed on or after March 1, 2002.
The amendments to this
article provided in Enrolled Committee Substitute for House Bill No. 2122
during the regular session of the Legislature, 2003, apply to all causes of
action alleging medical professional liability which are filed on or after July
1, 2003.
(b) The amendments to this
article provided in Enrolled Committee Substitute for Senate Bill No. 6 during
the regular session of the Legislature, 2015, apply to all causes of action
alleging medical professional liability which are filed on or after July 1,
2015.
(c) The amendments to this article
provided in Enrolled Committee Substitute for House Bill ____ during the
regular session of the Legislature, 2017, apply to all causes of action
alleging medical professional liability which are filed on or after July 1,
2017.
§55-7B-11. 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 as enacted during the regular
session of the Legislature, 2015, in House Bill ____, or as enacted during
the regular session of the Legislature, 2017, or the application thereof to
any person or circumstance is held invalid, the invalidity does 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 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, 2001, 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 section six or ten of this article or any provision of section
six-a, six-b or six-c of this article as provided in House Bill 601, enacted
during the sixth extraordinary session of the Legislature, 2001, is held
invalid, the invalidity does 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 amend the Medical Professional Liability act by adding a definition for
“occurrence,” reducing the statute of limitations from two years to one year in
certain actions, providing for a venue preference, establishing an attorneys’
fees schedule based on the amount recovered, establishing the effective date
and providing for severability.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.