H. B. 2871
(By Delegates Perdue and Border)
[Introduced March 4, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §55-7B-2 of the Code of West Virginia,
1931, as amended, relating to definitions under the Medical
Professional Liability Act.
Be it enacted by the Legislature of West Virginia:
That §55-7B-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
(a) "Board" means the state Board of Risk and Insurance
(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 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;
(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 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.
(f) "Health care facility" means any clinic, hospital, nursing
or assisted living facility, including personal care
home, residential care community and residential board and care
home, or behavioral health care facility or comprehensive community
mental health/mental retardation center, in and licensed by the
State of West Virginia and any state operated institution or clinic
providing health care.
(g) "Health care provider" means a person, partnership,
corporation, professional limited liability company, health care
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,
psychologist, emergency medical services authority or agency,
pharmacy or pharmacist,
or an officer, employee or agent thereof
acting in the course and scope of such 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
(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.
(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
(k) "Noneconomic loss" means losses, including, but not
limited to, pain, suffering, mental anguish and grief.
(l) "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) "Plaintiff" means a patient or representative of a patient
who brings an action for medical professional liability under this
(n) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
The amendments to this section enacted during the regular
session of the Legislature, 2005, are ameliorative in nature and
are intended merely to improve upon the definitions involved and
not to expand them beyond their original legislative intent.
NOTE: The purpose of this bill is to clarify that a licensed
pharmacy is a health care facility and licensed pharmacies and
pharmacists are health care providers solely under the provisions of the Medical Professional Liability Act. Licensed pharmacies and
pharmacists are licensed and certified by the West Virginia Board
of Pharmacy and participate in the preparation, compounding and
dispensing of drugs and medical devices to patients that are used
in the diagnosis, treatment, and prevention of disease.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would