H. B. 2599
(By Delegates Martin, Ashley,
Amores and Michael)
[Introduced March 18, 1997; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend article seven-b, chapter fifty-five of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
eight-a, relating to affirmative defenses to actions for
malpractice; providing limited protection to medical
practitioners declining to order diagnostic procedures of
marginal utility and ordering conservative therapy;
legislative findings; statutory construction; limitations of
section; applicability of section; specific acts and
omissions protected; exclusions from protection; authorizing
the commissioner of the bureau of public health to propose
rules; and requiring the commissioner of the bureau of
public health and the deans of the medical schools to meet
and confer for the purpose of developing research proposals.
Be it enacted by the Legislature of West Virginia:
That article seven-b, chapter fifty-five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
eight-a, to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-8a. Affirmative defenses to actions for malpractice.
(a)
Legislative findings. -- The Legislature finds that
clinical decisions with respect to the diagnosis and treatment of
illness or infirmity are best made according to the informed
clinical judgment of the treating medical practitioner in
consultation with the patient, other persons legally empowered to
consent to medical treatment on behalf of the patient and, when
appropriate, other family members or consulting medical
practitioners. The Legislature further finds that medical
practitioners called upon to diagnose a patient's condition or
prescribe therapies may practice defensive medicine, ordering all
possible diagnostic procedures, including diagnostic procedures
of marginal utility, and prescribing a more aggressive therapy in
lieu of a more conservative therapy even when there is little
likelihood that the more aggressive therapy will yield a better
result; that the practice of defensive medicine often operates to
the detriment of the public interest, resulting in a misdirection
of resources to high-cost procedures of marginal utility and away from treatment options more highly beneficial to the public
interest, and in some cases increasing or prolonging suffering
for the patient; and that, in some cases, ordering large numbers
of tests or procedures unlikely to result in a positive diagnosis
of disease may contribute to higher error rates in evaluating
test results. Therefore, the Legislature finds that it is in the
public interest to minimize the practice of defensive medicine by
offering limited protection from liability for malpractice to
those physicians who, in an exercise of professional clinical
judgment, order medically necessary procedures and decline to
order procedures of marginal utility, and consider conservative
treatment options in addition to more aggressive and invasive
options which may not yield a better result.
(b)
Legislative intent. -- It is not the intention of the
Legislature in enacting this section to imply that public policy
requires that the actions specifically protected in this section
are appropriate or medically indicated for all patients, or to
imply that the procedures specifically excluded from the
protections of this section are inappropriate or medically
excludable for all patients. It is not the intention of the
Legislature in enacting this section to imply that the
procedures, diagnostic tests or treatment choices, omission of which are protected, are not appropriate or medically necessary
for some patients. That an act or omission is protected only
with respect to some patient groups does not imply that public
policy either favors or disfavors that act or omission for other
patient groups.
(c)
Statutory construction. -- This section may not be
construed to effect any change in the law of this state with
respect to the responsibility of health care providers to obtain
informed consent to medical treatment, or with respect to persons
from whom informed consent may lawfully be obtained. This
section may not be construed to effect any change in the
applicable standard of care for medical professional liability
except to the limited extent that specific acts or omissions are
protected herein, and may not be construed to create new actions
for malpractice or new theories upon which an action for
malpractice may be based. This section may not be construed to
effect any change in the applicable standard of care for medical
professional liability for a health care provider who renders
emergency care, who is consulted for an acute illness or other
limited purpose, or whose scope of practice is limited to a
specialty, with respect to conditions outside the scope of the
emergency, the limited purpose, or the scope of the provider's practice. This section may not be construed to provide a basis
for denial of payment by third-party payors for any therapeutic
or diagnostic procedure. When reference is made in this section
to consultation with family members of a patient, the reference
may not be construed as imposing an affirmative duty on health
care providers to consult with all persons, other than the
patient or other person from whom consent must lawfully be
obtained, who may have an interest in the welfare of a patient.
(d)
Limitations. -- Notwithstanding any other provision of
this section to the contrary, liability of a health care
provider for failure to obtain informed consent to medical
treatment is specifically excluded from the protections of this
section. In order to claim any protection under this section,
the health care provider claiming the protection must demonstrate
that the action, omission or treatment choice claimed to be
protected occurred through the conscious exercise of professional
judgment, and did not occur due to the unavailability, absence,
or inattention of the health care provider owing a duty of care
to the patient and claiming the protection. A health care
provider claiming applicable protection under this section with
respect to a patient who is unconscious or otherwise incapable of
communication at the time the treatment or diagnostic choice is made, or with respect to a patient under a legal disability
preventing that patient from giving informed consent to medical
treatment at the time the treatment or diagnostic choice is made,
must demonstrate that the provider consulted with available
family members before making the diagnostic or treatment choice.
(e)
Applicability of section. -- The protections of this
section may be claimed only by a duly licensed physician,
osteopathic physician, nurse-midwife or advanced practice nurse
acting within the scope of that provider's practice; or by a
health care facility with respect to the acts or omissions of a
physician, osteopathic physician, nurse-midwife or advanced
practice nurse acting within the scope of the individual
provider's practice.
(f)
Protections with respect to certain patients. -- For a
patient who is not an inpatient in a hospital; has not been
diagnosed with a life-threatening condition or immunodeficiency
disease; is not afflicted with a mental disease or impairment
affecting the patient's ability to communicate reliable
information at the time a diagnostic or treatment choice is made;
and who is conscious, over the age of seven years, and capable of
communication at the time a diagnostic or treatment choice is
made; no cause of action against a health care provider owing a duty of care to a patient shall lie for the following acts or
omissions:
(1) Failure to recommend or order an X ray, other than a
chest X ray; an X ray required by the applicable standard of care
for a patient scheduled for outpatient surgery; or an X ray for
injuries or symptoms originating with recent traumatic injury, or
symptoms reported by the patient or disclosed by routine physical
examination or laboratory or other medical reports received by
the practitioner suggesting a diagnosis disclosable by X ray of
a life-threatening illness or condition;
(2) Failure to diagnose any condition not ascertainable by
routine physical examination, including, when appropriate, pelvic
or rectal examination, for which the patient is aware of no
symptoms, or for which a diagnosis is not reasonably suggested by
laboratory or other medical reports received by the physician,
other than a diagnosis of hypertensive illness, diabetes, breast
cancer, prostate cancer, cervical cancer, colon or rectal cancer,
sexually transmitted diseases, tuberculosis, a disease for which
a specific patient is at high risk based on family history or
known risk factors, or, in the case of an ophthalmologist,
glaucoma.
(3) Failure to recommend or order diagnostic sonography as an adjunct to mammography for the diagnosis of possible breast
cancer;
(4) When a patient's condition suggests more than one
possible diagnosis, but the possible diagnoses are likely to
respond to the same therapeutic approach, ordering a trial
therapy in the absence of tests or procedures necessary for a
specific diagnosis;
(5) When a patient's condition suggests more than one
possible diagnosis, one less serious and likely to respond to
conservative therapy, and the other more serious and not likely
to respond to conservative therapy, but, based on the patient's
condition, history and statistical probabilities, the less
serious diagnosis is the more probable, ordering a trial therapy
for a specific, limited period of time to evaluate the
effectiveness of the conservative therapy, deferring for that
time diagnostic tests or procedures to eliminate the more serious
condition as a diagnosis; and
(6) When a patient's condition suggests a specific diagnosis
and diagnostic testing for that condition is subject to a high
incidence of false-negative results, so that the applicable
standard of care would generally call for initiating therapy if
diagnostic testing failed to confirm the diagnosis, and when the specific therapy is not contraindicated by the patient's history
or general medical condition, initiating the therapy in the
absence of diagnostic testing to confirm the diagnosis.
(g)
Protections with respect to patients over fifty-five. --
For a patient over the age of fifty-five years, no cause of
action against a health care provider owing a duty of care to a
patient shall lie for the following acts or omissions:
(1) Failure to recommend surgical intervention for a
diagnosed illness or condition, when surgery is to a reasonable
degree of medical probability unlikely to effect a cure, to
mitigate suffering, to relieve or defer the onset of pain, or to
increase the patient's ability to function in activities of daily
living;
(2) Failure to recommend a more invasive or more aggressive
surgical intervention rather than a less invasive or less
aggressive surgical intervention for a diagnosed illness or
condition, when the more invasive or more aggressive surgery is
to a reasonable degree of medical probability unlikely to effect
a cure and not more likely than the less invasive or aggressive
surgery to mitigate suffering, to relieve or defer the onset of
pain or to increase the patient's ability to function in
activities of daily living;
(3) When a patient's condition, based on symptoms reported
by a patient and observed by the medical practitioner, suggests
a probable diagnosis of rheumatoid arthritis, ordering
conservative treatment for symptoms, which unless otherwise
contraindicated may include prescription of salycylates or
nonsteroidal anti-inflammatory drugs, and deferring X ray or
laboratory tests which may confirm a definite diagnosis and
deferring more aggressive treatments for a period of time
consistent with good medical practice in order to evaluate the
effectiveness of the conservative treatment;
(4) Failure to recommend or perform invasive diagnostic
procedures or recommend or perform surgical treatment when a
patient's condition, based on information reported by the
patient, physical examination, and noninvasive diagnostic
procedures including electrocardiogram suggests a diagnosis of a
generalized cardiovascular disorder, a disease of the heart or
pericardium, or myocardial ischemic disorder; or for a patient
who survives a first incident of acute myocardial infarction;
when in the best clinical judgment of a physician specializing in
cardiovascular diseases the patient is a candidate for
conservative management of the cardiovascular disorder, to
include management of underlying or contributing conditions such as hypertension or diabetes and appropriate lifestyle changes.
The protections of this subdivision do not extend to a medical
practitioner failing to recommend or order hospitalization for a
patient with symptoms consistent with acute myocardial
infarction; and
(5) Failure to recommend surgical or other therapies which
are significantly mutilating or significantly decrease the
patient's ability to function in activities of daily living, even
if the mutilating therapy, or therapy adversely affecting
function, may prolong life. A therapy is significantly
mutilating if the patient considers the therapy significantly
mutilating; if it deprives a patient of a limb or essential body
part; or if a reasonable man or woman who is not a medical
practitioner would consider the therapy significantly
disfiguring.
(h)
Protections with respect to terminally ill patients. --
For patients over the age of eighteen years diagnosed with a
terminal illness, no cause of action against a health care
provider owing a duty of care to a patient shall lie for the
following acts or omissions:
(1) Failure to order or recommend diagnostic procedures for
the purpose of monitoring the course of the disease process, when the diagnostic testing would be to a reasonable degree of medical
probability unlikely to affect treatment choices;
(2) Failure to recommend surgical intervention for the
terminal illness or condition, when the surgery would be to a
reasonable degree of medical probability unlikely to mitigate
suffering, to relieve or defer the onset of pain, or to increase
the patient's ability to function in activities of daily living;
(3) Failure to recommend a more invasive or more aggressive
surgical intervention rather than a less invasive or less
aggressive surgical intervention for the terminal illness or
condition, when the more invasive or more aggressive surgery is
not to a reasonable degree of medical probability more likely
than the less invasive or aggressive surgery to mitigate
suffering, to relieve or defer the onset of pain or to increase
the patient's ability to function in activities of daily living;
(4) Failure to recommend surgery for conditions secondary or
unrelated to the terminal illness or condition, when the surgery
is to a reasonable degree of medical probability unlikely to
mitigate suffering, to relieve or defer the onset of pain, or to
increase the patient's ability to function in activities of daily
living;
(5) Failure to treat conditions secondary or unrelated to the terminal illness or condition, when the treatment is to a
reasonable degree of medical probability likely to cause
significant suffering or the secondary or unrelated condition is
not contributing significantly to the suffering of the patient;
(6) For cancers treatable by chemotherapy or radiation,
failure to recommend maximum or aggressive chemotherapy or
radiation, as opposed to palliative chemotherapy or radiation,
when the specific diagnosis is to a reasonable degree of medical
certainty not a condition for which a complete cure or remission
of symptoms is likely to occur;
(7) Failure to prolong life by artificial means, including
failure to place the patient on a ventilator; and
(8) Failure to resuscitate a patient whose terminal illness
or condition has caused and, in the event the patient regains
consciousness, will continue to cause significant suffering.
(i)
Protections with respect to pregnancy and delivery. --
For patients who are pregnant and the developing fetus or child,
no cause of action against a health care provider owing a duty of
care to a patient, fetus or child shall lie for the following
acts or omissions:
(1) Failure to order or recommend diagnostic sonography in
the first trimester of pregnancy, except in the case of medical indications of ectopic or interstitial pregnancy, or indications
that a specific patient is at high risk, based on medical history
and known risk factors, for ectopic or interstitial pregnancy;
(2) Failure to order or recommend diagnostic sonography in
the second trimester of pregnancy, except in the case of medical
indications of interstitial pregnancy, indications of premature
labor, indications that continuing the pregnancy may endanger the
life or health or the mother, or indications that the pregnancy
is not progressing normally; or in the case of a fetus at high
risk based on family history or known risk factors for developing
with a congenital abnormality discloseable by sonogram;
(3) Failure to order or recommend electronic fetal
monitoring for a patient whose onset of labor is at term, whose
cervix is fewer than five centimeters dilated and who has been in
labor less than twelve hours, when the fetus and the progress of
labor is monitored by other than electronic means consistent with
good medical practice; and
(4) Failure to recommend or perform a caesarean section on
a patient whose onset of labor is at term, except in the case of
medical indications of fetal distress including, but not limited
to, abnormal fetal heart rate or the presence of meconium;
indications of preeclampsia, eclampsia, abruptio placenta, placenta previa, or prolapsed cord; abnormal vaginal bleeding in
the first stages of labor; the passage of twenty-four hours
subsequent to the rupture of membranes; abnormal fetal
presentation or position; or pregnancy complicated by herpes
genitalis, or disease of the mother or disease or diagnosed
congenital abnormalities of the fetus which contraindicate
prolonging labor.
(j)
Procedures excluded from protection. -- Notwithstanding
any other provision of this section to the contrary, except in
the case of conditions outside the scope of emergency care, a
limited purpose contact, or the scope of practice, failure to
recommend, order, or perform the following procedures for
patients for whom the applicable standard of care suggests that
the procedure be performed or repeated is specifically excluded
from the protection of this section:
(1) Mammography for the diagnosis of breast cancer;
(2) Papanicolaou smear (Pap test) for the diagnosis of
cervical cancer and sexually transmitted diseases;
(3) Examination with a tonometer for patients at risk for
glaucoma;
(4) Complete blood count (CBC);
(5) Urine screening and fasting blood sugar for the diagnosis of diabetes;
(6) Serum cholesterol testing for persons at risk for heart
disease;
(7) Tuberculin testing;
(8) Cervical gram stain and, if negative, culture of exudate
specimen for the diagnosis of gonorrhea;
(9) Darkfield examinations of fluid from lesions for the
diagnosis of syphilis;
(10) Serologic screening tests for the diagnosis of syphilis
and, if positive, CSF examination;
(11) Specific or treponemal serological test for the
diagnosis of syphilis if a false-positive result on a screening
test is suspected;
(12) Microscopic examination of secretions for the diagnosis
of trichomoniasis, (unless diagnosed by Papanicolaou smear);
(13) Electrocardiogram for undiagnosed acute chest pain;
(14) Screening for occult blood in stool and, if positive,
sigmoidoscopy;
(15) Any diagnostic X ray or sonogram required by the
applicable standard of care prior to scheduling hospital
admission, outpatient surgery, higher cost diagnostic procedures
including, but not limited to, computerized tomography or magnetic resonance imaging, or invasive diagnostic procedures,
when the higher cost or more invasive procedure will to a
reasonable degree of medical probability be avoided if results of
X ray or sonogram are favorable;
(16) Any other procedure specifically required by law; and
(17) Routine physical examination, including, when
appropriate, pelvic and rectal examination.
(k) If the commissioner of the bureau of public health finds
that additional inclusions or exclusions from protection are
necessary to the public health or welfare, the commissioner may,
by legislative rule proposed pursuant to the provisions of
article three, chapter twenty-nine-a of this code, provide for
additional acts or omissions to be specifically protected, and
additional acts or procedures to be specifically excluded from
protection. In addition to the notice and filing requirements of
sections five, six and seven, article three, chapter
twenty-nine-a of this code, copies of the proposed rule, notices,
and findings and determinations shall be mailed by regular United
States mail, postage prepaid, to all medical practitioner members
of the West Virginia board of medicine created in section five,
article three, chapter thirty of this code; all medical
practitioner members of the board of osteopathy created in section three, article fourteen of this code; and all medical
practitioner members of the state advisory board created in
section one, article four, chapter nine of this code. In the
case of acts and procedures to be excluded from protection,
emergency rules are specifically authorized.
(l) On or before the first day of September, one thousand
nine hundred ninety-seven, the commissioner of the bureau of
public health and the deans of the medical schools of West
Virginia University and Marshall University, and any other
persons as the commissioner and deans determine may be of
assistance, shall meet and confer for the purpose of developing
proposals for measuring the impact of this legislation on
treatment and diagnostic choices made by medical practitioners
and on the health and welfare of citizens of the state; and for
the further purpose of developing proposals for research,
including grant proposals, for specific research or studies
designed to measure that impact.
NOTE: The purpose of this bill is to minimize the practice
of defensive medicine by health care providers by providing
limited protection against actions for malpractice to health care
providers declining to order diagnostic procedures of marginal
utility and considering conservative treatment options.
§55-7B-8a is new; therefore, strike-throughs and underscoring have been omitted.
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