Senate Bill No. 499
(By Senators Jenkins, Foster and McCabe)
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[Introduced March 9, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §55-7-11a of the Code of West Virginia,
1931, as amended, relating to the admissibility of expressions
of apology, responsibility, sympathy, commiseration,
condolence, compassion or general sense of benevolence which
are made by a health care provider or an employee of a health
care provider to a patient or relatives or representatives of
the patient; and providing that any such expressions made to
a patient or his or her relatives or representatives shall be
inadmissible as evidence of admission of liability or as
evidence of an admission against interest.
Be it enacted by the Legislature of West Virginia:
That §55-7-11a of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-11a. Settlement, release or statement within twenty days after personal injury; disavowal; certain
expressions of sympathy inadmissible as evidence.
(a) If a person sustains a personal injury, no person shall
within twenty days from the date of
such the personal injury while
the injured person is either:
(a) (i) An inpatient in any
hospital; or
(b) (ii) partially or totally unable to engage in his
or her usual trade, profession or occupation:
(1) Negotiate or attempt to negotiate a settlement of any
claim for such personal injury with or for and on behalf of
such
the injured person;
(2) Obtain or attempt to obtain from
such the injured person
a partial or general release of liability for such injury; or
(3) Obtain or attempt to obtain any statement, either written
or oral, from the injured person for use in negotiating a
settlement or obtaining a partial or general release of liability
with respect to
such the personal injury:
Provided, That nothing
herein shall prohibit a person acting or intending to act for and
on behalf of
such the injured person from obtaining any statement,
oral or written, from an injured person upon the express request of
the injured person.
Nothing herein shall prevent a person who may be liable for
damages on account of
such the personal injury from making an
advance payment of all or any part of his liability for
such the
damages; any sum paid during
such the twenty days by a person liable for damages on account of
such the personal injury
shall be
is allowed as full credit against any damages which may be finally
determined to be due an injured person.
Any settlement, release of liability or statement entered
into, obtained or made in violation of this section may be
disavowed by the injured person at any time within one hundred
eighty days from the date of the personal injury by executing a
written statement of disavowal and thereupon forwarding a copy of
the same to the person violating this section, in which event
such
the settlement, release or statement
shall may not be admissible in
evidence for any purpose in any court or other proceeding relating
to
such the personal injury, if any consideration paid for the
settlement of or the general release of liability for
such the
personal injury, at the time of the forwarding of the copy of
such
the written statement of disavowal, is repaid or returned to the
person who paid
such the consideration.
(b) (1) No statement, affirmation, gesture or conduct
expressing apology, responsibility, sympathy, commiseration,
condolence, compassion or a general sense of benevolence which is
made by a health-care provider to the patient, a relative of the
patient or a representative of the patient and which relate to the
discomfort, pain, suffering, injury or death of the patient shall
be admissible as evidence of an admission of liability or as
evidence of an admission against interest in any civil action brought under the provision of article seven-b, chapter fifty-five
of this code, or in any arbitration, mediation or other alternative
dispute resolution proceeding related to such civil action.
(2) Terms not otherwise defined in this section have the
meanings assigned to them in article seven-b, chapter fifty-five of
this code. For purposes of this section, unless the context
otherwise requires, "relative" means a spouse, parent, grandparent,
stepfather, stepmother, child, grandchild, brother, sister,
half-brother, half-sister or spouse's parents. The term includes
said relationships that are created as a result of adoption. In
addition, "relative" includes any person who has a family-type
relationship with a patient.
NOTE: The purpose of this bill is to encourage physicians and
other health-care providers to maintain open communications with
patients in circumstances where an unanticipated outcome arises
from a medical treatment or procedure, without fear that any
expressions of apology, sympathy, compassion and the like made in
such circumstances will be used against the physician or
health-care provider in any subsequent legal proceedings. By
encouraging such open communications, the bill is intended to
encourage and facilitate better patient care and the provision of
prompt and fair compensation to persons suffering an unanticipated
outcome from a medical treatment or procedure.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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