COMMITTEE SUBSTITUTE
FOR
H. B. 2506
(By Delegates Hatfield, Marshall, Caputo, Keener, Manuel,
Fleischauer and Mahan)
(Originating in the Committee on the Judiciary)
[April 4, 2001]
A Bill to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-eight,
relating to patient health care safety; establishing
legislative intent and defining terms; prohibiting
discrimination and retaliation against health care workers for
reporting instances of waste or wrongdoing; requiring
confidentiality of health care workers who file reports or
complaints; providing for enforcement through civil actions;
specifying the relief available and a two-year statute of
limitation; and requiring the posting of certain notices by
health care entities.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirty-eight, to read as follows:
ARTICLE 38. PATIENT SAFETY ACT.
§16-38-1. Short title.
This article may be cited as the "Patient Safety Act of 2001."
§16-38-2. Legislative findings and purpose.
(a) The Legislature finds that:
(1) Patients receiving medical care in this state need stable
and consistent care from those providing health care services at
every level;
(2) Dedicated health care workers are instrumental in
providing quality patient care services and ensuring that the
patient's best interests are at all times protected;
(3) During the course of caring for their patients, many
health care workers often observe instances of waste or wrongdoing
that detrimentally affect both the patients and the health care
facility;
(4) Health care workers who observe such matters are often
reluctant to report the waste or wrongdoing to the administrator of
the health care facility or other appropriate authority for fear of
retaliatory or discriminatory treatment through termination,
demotion, reduction of time, wages or benefits or other such
actions; and
(5) The quality of available health care will suffer in this
state if dedicated health care workers are discouraged from
reporting instances of waste or wrongdoing that affect the quality
of health care delivery in this state.
(b) Consequently, the Legislature intends by enacting this
article to protect patients by providing protections for those
health care workers with whom the patient has the most direct
contact.
§16-38-3. Definitions.
For purposes of this article:
(1) "Appropriate authority" means a federal, state, county or
municipal government body, agency or organization having
jurisdiction over criminal law enforcement, regulatory violations,
professional conduct or ethics, or waste or any member, officer,
agent, representative or supervisory employee thereof.
(2) "Commissioner" means the commissioner of the bureau for
public health;
(3) "Direct patient care" means health care that provides for
the physical, diagnostic, emotional or rehabilitational needs of a
patient or health care that involves examination, treatment or
preparation for diagnostic tests or procedures.
(4) "Discrimination or retaliation" includes any threat, intimidation, discharge or any adverse change in a health care
worker's position, location, compensation, benefits, privileges or
terms or conditions of employment that occurs as a result of a
health care worker engaging any action protected by this article.
(5) "Good faith report" means a report of conduct defined in
this article as wrongdoing or waste that is made without malice or
consideration of personal benefit and which the person making the
report has reasonable cause to believe is true.
(6) "Health care entity" includes a health care facility, such
as a hospital, clinic, nursing facility or other provider of health
care services.
(7) "Health care worker" means a person who provides direct
patient care to patients of a health care entity and who is an
employee of the health care entity, a subcontractor or independent
contractor for the health care entity, or an employee of such
subcontractor or independent contractor. The term includes, but is
not limited to, a nurse, nurse's aide, laboratory technician,
physician, intern, resident, physician assistant, physical
therapist or other such person who provides direct patient care.
(8) "Waste" means the conduct, act or omission by a health
care entity that results in substantial abuse, misuse, destruction
or loss of funds, resources or property belonging to a patient, a health care entity or any federal or state program.
(9) "Wrongdoing" means a violation of any law, rule,
regulation or generally recognized professional or clinical
standard that relates to care, services or conditions and which
potentially endangers one or more patients or workers or the
public.
§16-38-4. Prohibition against discrimination or retaliation.
(a) No person may retaliate or discriminate in any manner
against any health care worker because the worker, or any person
acting on behalf of the worker:
(1) Makes a good faith report, or is about to report, verbally
or in writing, to the health care entity or appropriate authority
an instance of wrongdoing or waste.
(2) Advocated on behalf of a patient or patients with respect
to the care, services or conditions of a health care entity;
(3) Initiated, cooperated or otherwise participated in any
investigation or proceeding of any governmental entity relating to
the care, services or conditions of a health care entity.
(b) A health care worker with respect to the conduct described
is acting in good faith if the health care worker reasonably
believes:
(1) That the information is true and
(2) Constitutes waste or wrongdoing as defined in section
three of this article.
§16-38-5. Confidentiality of complaints to government agencies.
The identity of a health care worker who complains in good
faith to a government agency or department about the quality of
care, services or conditions of a health care entity or any waste
or wrongdoing by the health care entity shall remain confidential
and may not be disclosed by any person except upon the knowing
written consent of the health care worker and except in the case in
which there is imminent danger to health or public safety or an
imminent violation of criminal law.
§16-38-6. Enforcement.
(a) Any health care worker who believes that he or she has
been retaliated or discriminated against in violation of section
four of this article may file a civil action in any court of
competent jurisdiction against the health care entity and the
person believed to have violated section four of this article.
(b) A court, in rendering a judgment for a complainant in an
action brought under this article, shall order, as the court
considers appropriate, reinstatement of the health care worker, the
payment of back wages, full reinstatement of fringe benefits and
seniority rights, actual damages or any combination of these remedies. A court may also award the complainant, all or a portion
of the costs of litigation, including reasonable attorneys fees and
witness fees, if the court determines that the award is
appropriate.
(c) An action may be brought under this subsection not later
than two years after the date of the last event constituting the
alleged violation for which the action is brought.
§16-38-7. Notice.
Each health care entity shall post and keep posted, in
conspicuous places on the premises of the health care entity where
notices to employees and applicants for employment are customarily
posted, a notice, to be prepared or approved by the commissioner,
setting forth excerpts from, or summaries of, the pertinent
provisions of this article and information pertaining to the filing
of a charge under section four of this article.
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