Introduced Version
House Bill 2662 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2662
(By Delegate J. Martin )
(Introduced February 23, 1995; referred to the
Committee on 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-b, 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 promulgate
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-
b, to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§ 55-7B-8b. 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 best 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 appropriate or medically indicated
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 is 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, such
reference shall 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 at some time
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) 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 opthamologist, 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; and
(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.
(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) 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 non-steroidal 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;
(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) 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;
(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) 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 intersitial 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 disclosable 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;
(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) 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/or 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/or 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 promulgated pursuant to the provisions of 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-five, the commissioner of the bureau of public
health and the deans of the medical schools of West Virginia
University and Marshall University, and such 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-8b is new; therefore, strike-throughs and underscoring
have been omitted.