H. B. 4606
(By Delegates Cann, Kominar, H. White,
Foster and Stalnaker)
[Introduced February 25, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §33-6-37, relating to
creation of a health care providers lien, the effect of the
lien, the records of the health care provider, priority of
liens and the 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 §33-6-37, to read as
follows:
ARTICLE 6. THE HEALTH CARE INSURANCE POLICY.
§33-6-37. Health care provider lien act.
(a)
Creation of physician lien. -- Every licensed physician,
including medical physicians, osteopathic 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-three of this code, shall have a lien
upon all claims and causes of action for the amount of the
provider'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 health care provider 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. Service of the lien shall be made
by registered or certified mail or in person.
(b)
Effect of lien. -- The lien of any such health care
provider 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 judgement 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 health care provider - examination by party to action. -- Any party to a cause pending in a court against whom a
claim shall be therein asserted for damages resulting from injuries
shall, upon request in writing, be permitted to examine the records
of the health care provider in reference to the examination and
treatment of the injured person. Any health care provider claiming
a lien under this section shall, within thirty days of being so
requested in writing by any such party, furnish to such 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 and the history, if any, as given by the injured person,
insofar as shown by the records of the physician as to the manner
in which the injuries were received.
(d) Records of health care provider - 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, be permitted to examine
the records of the physician in reference to the examination and
treatment of the injured person. Any health care provider claiming
a lien under this act shall, within ten days of being so requested
in writing by any such party, 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 health care
provider and the history if any, as given by the injured person,
insofar as shown by the records of the physician as to the manner
in which the injuries were received.
(e)
Failure to furnish medical report - effect. -- Should any
health care provider fail or refuse to give or file a written
statement in conformity with and as required by subsections (c) and
(d) hereof after being so requested in writing in conformity with
sections (c) and (d) hereof, the lien of such health care provider
shall immediately become null and void.
(f)
Adjudication of rights - priority of liens. -- On petition
filed by the injured person or such licensed health care provider
practicing in this state, the circuit court shall, on written
notice to all interested adverse parties, adjudicated the rights of
all interested parties and enforce their liens.
(g)
Exclusion of health insurance benefits. -- That 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 judgement paid from any insurance company, corporation
or individual. This 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 chapter thirty
three, articles fifteen, sixteen, sixteen-c, twenty-a, twenty four,
twenty five and twenty five-a 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 satisfies shall be held liable to
the licensed health care provider for the full amount of the lien.
§33-6-37 is new; therefore, strike-throughs and underscoring
have been omitted.