Bill Text: WV HB4218 | 2018 | Regular Session | Comm Sub
Bill Title: Relating to medical professional liability
Spectrum: Partisan Bill (Republican 8-0)
Status: (Engrossed - Dead) 2018-02-28 - To Health and Human Resources [HB4218 Detail]
Download: West_Virginia-2018-HB4218-Comm_Sub.html
WEST virginia legislature
2018 regular session
Committee Substitute
for
House Bill 4218
By Delegates Ellington, Summers Householder, Rohrbach, Sobonya, Criss, Hollen and Frich
[Reported Down February 22,
2018; Referred
to the Committee on Health and Human Resources then the Judiciary.]
Be it enacted by the Legislature of West Virginia:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-6. Prerequisites for filing an action against a health care provider; procedures; sanctions.
(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.
(b) At least thirty days
prior to the filing of a medical professional liability action against a health
care provider, the claimant shall serve by certified mail, return receipt
requested, a notice of claim on each health care provider the claimant will
join in litigation. The notice of claim shall include a statement of the theory
or theories of liability upon which a cause of action may be based, and a list
of all health care providers and health care facilities to whom notices of
claim are being sent, together with a screening certificate of merit. The
screening certificate of merit shall be executed under oath by a health care
provider qualified as an expert under the West Virginia rules of evidence: and
The health care provider signing a
certificate of merit shall:
(1) Be licensed to practice medicine as of the date of the
affidavit; and
(2) In the twelve months immediately preceding the alleged
negligent act has been engaged in the treatment of patients and/or in the
teaching/academic side of medicine in the same field of medicine as the
defendant or defendants; and
(3) Be board certified in the same field of medicine if the
defendant or defendants is board-certified. The board certification requirement
shall not apply to an expert that began the practice of medicine prior to the
existence of board certification in the applicable specialty.
The certificate of
merit shall state with particularity: (1) The expert’s
familiarity with the applicable standard of care in issue; (2) the expert’s
qualifications a brief recitation of the expert’s knowledge, skill,
experience, training, or education which forms the basis for his/her
familiarity with the applicable standard of care; (3) the expert’s opinion
as to how the applicable standard of care was breached; and (4) the expert’s
opinion as to how the breach of the applicable standard of care resulted in
injury or death: Provided,
That the
healthcare provider submitting a screening certificate of merit in accordance
with the provisions of this section must also qualify as an expert pursuant to
the provisions of §55-7B-7 of this code. A separate
screening certificate of merit must be provided for each health care provider
against whom a claim is asserted. The person signing the screening certificate
of merit shall have no financial interest in the underlying claim, but may
participate as an expert witness in any judicial proceeding. Nothing in this
subsection may be construed to limit limits the application of
rule 15 of the rules of civil procedure.
(c) Notwithstanding any provision of this code, if a claimant or his or her counsel, believes that no screening certificate of merit is necessary because the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care, the claimant or his or her counsel shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit.
(d) Except for medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, if a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.
(e) In medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, if a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within one hundred eighty days of the date the health care provider receives the notice of claim.
(f) Any health care provider who receives a notice of claim pursuant to the provisions of this section may respond, in writing, to the claimant or his or her counsel within thirty days of receipt of the claim or within thirty days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider’s counsel, if any.
(g) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section, the health care provider is entitled to prelitigation mediation before a qualified mediator upon written demand to the claimant.
(h) If the health care provider demands mediation pursuant to the provisions of subsection (g) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the Supreme Court of Appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.
(i)(1) Except for medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, and except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of mail of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs.
(2) In medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled one hundred eighty days from the date of mail of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs.
(3) If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded.
(j) Notwithstanding
any other provision of this code, a notice of claim, a health care provider's
response to any notice claim, a screening certificate of merit and the results
of any mediation conducted pursuant to the provisions of this section are
confidential and are not admissible as evidence in any court proceeding unless
the court, upon hearing, determines that failure to disclose the contents would
cause a miscarriage of justice: Provided, That if it
appears to the court that a health care provider has incurred attorney fees and
costs unnecessarily because the claimant has submitted a notice of claim that
asserted unfounded claims or a screening certificate of merit that contains
unfounded or unsupported conclusions against that healthcare provider, the
court may order the claimant, or the healthcare provider who executed the
screening certificate of merit, or both, to pay reasonable attorney fees and
costs to the other party.
