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Introduced Version Senate Bill 72 History

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Key: Green = existing Code. Red = new code to be enacted
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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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