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Introduced Version Senate Bill 499 History

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sb499 intr
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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