SB627 HJUD AM 3-3
Hardison 3258
The Committee on the Judiciary moves to amend the bill on page one, by striking
everything after the enacting clause and inserting in lieu thereof the following:
That §30-3A-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §55-7-23 of said code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3A. MANAGEMENT OF INTRACTABLE PAIN.
§30-3A-2. Limitation on disciplinary sanctions or criminal punishment related to management of pain.
(a) A physician is not subject to disciplinary sanctions by a licensing board or criminal punishment by the state for prescribing, administering or dispensing pain-relieving controlled substances for the purpose of alleviating or controlling pain if:
(1) In the case of a dying patient experiencing pain, the physician practices in accordance with an accepted guideline as defined in section one of this article and discharges his or her professional obligation to relieve the dying patient’s pain and promote the dignity and autonomy of the dying patient; or
(2) In the case of a patient who is not dying and is experiencing pain, the physician discharges his or her professional obligation to relieve the patient’s pain, if the physician can demonstrate by reference to an accepted guideline that his or her practice substantially complied with that accepted guideline. Evidence of substantial compliance with an accepted guideline may be rebutted only by the testimony of a clinical expert. Evidence of noncompliance with an accepted guideline is not sufficient alone to support disciplinary or criminal action.
“(b) A health care provider, as defined in section two,
article seven-b, chapter fifty-five of this code, with prescriptive authority
is not subject to disciplinary sanctions by a licensing board or criminal
punishment by the state for declining to prescribe, or declining to continue to
prescribe, any controlled substance to a patient which the health care provider
with prescriptive authority is treating if the health care provider with
prescriptive authority in the exercise of reasonable prudent judgment believes
the patient is misusing the controlled substance in an abusive manner or
unlawfully diverting a controlled substance legally prescribed for their use.”
(b) (c) A licensed registered professional
nurse is not subject to disciplinary sanctions by a licensing board or criminal
punishment by the state for administering pain-relieving controlled substances
to alleviate or control pain, if administered in accordance with the orders of
a licensed physician.
(c) (d) A registered licensed pharmacist is
not subject to disciplinary sanctions by a licensing board or criminal
punishment by the state for dispensing a prescription for a pain-relieving
controlled substance to alleviate or control pain, if dispensed in accordance
with the orders of a licensed physician.
(d) (e) For purposes of this section, the term “disciplinary
sanctions” includes both remedial and punitive sanctions imposed on a licensee
by a licensing board, arising from either formal or informal proceedings.
(e) (f) The provisions of this section apply to
the treatment of all patients for pain, regardless of the patient’s prior or
current chemical dependency or addiction. The board may develop and issue
policies or guidelines establishing standards and procedures for the
application of this article to the care and treatment of persons who are
chemically dependent or addicted.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-23. Prescription drugs and medical devices; limiting health care providers= liability exposure.
(a)
No health care provider, as defined in section two, article seven-b of this
chapter, is liable to a patient or third party for injuries sustained as a
result of the ingestion of a prescription drug or use of a medical device that
was prescribed or used by the health care provider in accordance with
instructions approved by the U. S. Food and Drug Administration regarding the
dosage and administration of the drug, the indications for which the drug
should be taken or device should be used, and the contraindications against
taking the drug or using the device: Provided, That the provisions of this
section shall do not apply if: (1) The health care provider had
actual knowledge that the drug or device was inherently unsafe for the purpose
for which it was prescribed or used; or (2) a manufacturer of such the
drug or device publicly announces changes in the dosage or administration of such
the drug or changes in contraindications against taking the drug or
using the device and the health care provider fails to follow such the
publicly announced changes and such the failure proximately
caused or contributed to the plaintiff=s injuries or damages.
(b) A health care provider with prescriptive authority is not liable to a patient or third party for declining to prescribe, or declining to continue to prescribe, any controlled substance to a patient which the health care provider with prescriptive authority is treating if the health care provider with prescriptive authority in the exercise of reasonable prudent judgment believes the patient is misusing the controlled substance in an abusive manner or unlawfully diverting a controlled substance legally prescribed for their use.
(b) (c) The provisions of this
section are not intended to create a new cause of action.
NOTE: The purpose of this bill is to allow a physician to decline to prescribe a controlled substance to a patient without being subject to disciplinary action, criminal action or creating a cause of action if the physician believes the patient is abusing the controlled substance or diverting it unlawfully.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.