Committee Substitute
House Bill 2224 History
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Introduced Version
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Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE
FOR
H. B. 2224
(By Delegates Cann, Kominar, H. White and Stalnaker)
(Originating in the Committee on the Judiciary)
[March 28, 2005]
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 lien for physicians and physical therapists,
effect of the lien, access to related medical records of
physician and therapist, priority of lien, and 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 INSURANCE POLICY.
§33-6-37. Physicians Lien Act.
(a) Creation of physicians lien. -- Every licensed physician,
including medical physicians, osteopathic physicians, chiropractic
physicians, podiatric physicians, physical therapists, dentists and
oral surgeons 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
physician or therapist practicing in this state, and the name of
the party alleged to be liable to make compensation to the injured
person for the injuries received, which notice shall be served on
both the injured person and the party against whom the claim or
right of action exists or that persons liability insurance company.
Service of the lien shall be made by registered or certified mail
or in person.
(b) Effect of lien. -- The lien of any such licensed physician
or therapist 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 judgment 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 physician, dentist or therapist; 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 and upon
presentation of a HIPPA compliant medical record release
authorization or subpoena be permitted to examine the records of
the physician, dentist or therapist in reference to the examination
and treatment of the injured person. Any physician, dentist or
therapist claiming a lien under this section shall, within thirty
days of being so requested in writing by any party, and only after
presentation of a HIPPA compliant medical record release
authorization or subpoena, furnish to the 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 the physician, dentist
or therapist and the history, if any, as given by the injured
person, insofar as shown by the medical records and the manner in
which the injuries were received.
(d) Records of physician or therapist- 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 and upon presentation of a
HIPPA compliant medical record release authorization, be permitted to examine the records of the physician, dentist or therapist in
reference to the examination and treatment of the injured person.
Any physician, dentist or therapist claiming a lien under this act
shall, within ten days of being so requested in writing by any
party, and only after presentation of a HIPPA compliant medical
record release authorization, furnish to the party, a written
statement of the nature and extent of the injuries sustained by and
the treatment given to the injured person by the physician, dentist
or therapist and the history if any, as given by the injured
person, insofar as shown by the medical records and the manner in
which the injuries were received.
(e) Failure to furnish medical report - effect. -- Should any
physician, dentist or therapist 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 said
physician, dentist or therapist shall immediately become null and
void.
(f) Adjudication of rights - priority of liens. -- Upon
petition filed by the injured person or medical lien holder
practicing in this state, the circuit court shall, on written
notice to all interested adverse parties, adjudicate the rights of
all interested parties and enforce their liens.
(g) Exclusion of health insurance benefits. -- 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 judgment paid from any insurance company, corporation
or individual. The 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 the bodily injury claim or cause of action is settled or
any such verdict or judgment is satisfied shall be held liable to
the licensed physician or therapist for the full amount of the
lien.
(i) HIPPA compliant medical records release authorization. --
A HIPPA compliant medical records release authorization for the
purpose referred to in this section is a written medical release
document that is compliant with 45 C.F.R. §§160-164 (2003) and the
Health Insurance Portability and Accountability Act of 1996 (HIPPA)
and which shall also be signed by the person or a legal
representative of the person whose protected health information is
the subject of the request.
NOTE: The purpose of this bill is to create a physicians lien
act to create a medical lien in favor of physicians, dentists and
therapists and defines the effect of the lien; addresses access to
the related records of a physician, dentist or therapist; priority
of liens and exclusion of health insurance benefits.
This section
is new; therefore, strike-throughs and
underscoring have been omitted.