Senate Bill No. 611
(By Senators Kessler, Bowman, Edgell and Minard)
____________
[Introduced March 26, 2001; referred to the Committee on
Banking and Insurance; and then to the Committee on the
Judiciary.]
____________
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 five-t, relating
to health care liability; providing definitions; stating the
care required by health insurance carriers or health
maintenance organizations and when liable for damages; and
limitations on cause of action.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five-t, to read as follows:
ARTICLE 5T. HEALTH CARE LIABILITY.
§16-5T-1. Definitions.
As used in this article:
(a) "Appropriate and medically necessary" means the standard
for health care services as determined by physicians and health
care providers in accordance with the prevailing practices and
standards of the medical profession and community.
(b) "Enrollee" means an individual who is enrolled in a
health care plan, including covered dependents.
(c) "Health care plan" means any plan whereby any person
undertakes to provide, arrange for, pay for, or reimburse any
part of the cost of any health care services.
(d) "Health care provider" means a person or entity as
defined in section two, article twenty-five-a, chapter
thirty-three of this code, the health maintenance organization
act or in section two, article seven-b, chapter fifty-five of
this code, which is the medical professional liability act.
(e) "Health care treatment decision" means a determination
made when medical services are actually provided by the health
care plan and a decision which affects the quality of the diagnosis, care or treatment provided to the plan's insureds or
enrollees.
(f) "Health insurance carrier" means an authorized insurance
company that issues policies of accident and sickness insurance
under chapter thirty-three of this code.
(g) "Health maintenance organization" means an organization
as defined in section two, article twenty-five-a, chapter
thirty-three of this code, the health maintenance organization
act.
(h) "Managed care entity" means any entity which delivers,
administers or assumes risk for health care services with systems
or techniques to control or influence the quality, accessibility,
use or costs and prices of the services to a defined enrollee
population, but does not include an employer purchasing coverage
or acting on behalf of its employees or the employees of one or
more subsidiaries or affiliated corporations of the employer or
a pharmacy licensed by the state board of pharmacy.
(i) "Physician" means:
(1) An individual licensed to practice medicine in this
state;
(2) A professional association organized under the laws of this state; or
(3) Another person wholly owned by physicians.
(j) "Ordinary care" means, in the case of a health insurance
carrier, health maintenance organization or managed care entity,
that degree of care that a health insurance carrier, health
maintenance organization or managed care entity of ordinary
prudence would use under the same or similar circumstances. In
the case of a person who is an employee, agent, ostensible agent
or representative of a health insurance carrier, health
maintenance organization or managed care entity, "ordinary care"
means that degree of care that a person of ordinary prudence in
the same profession, specialty, or area of practice as the person
would use in the same or similar circumstances.
§16-5T-2. Application.
(a) A health insurance carrier, health maintenance
organization or other managed care entity for a health care plan
has the duty to exercise ordinary care when making health care
treatment decisions and is liable for damages for harm to an
insured or enrollee proximately caused by its failure to exercise
ordinary care.
(b) A health insurance carrier, health maintenance organization or other managed care entity for a health care plan
is also liable for damages for harm to an insured or enrollee
proximately caused by the health care treatment decisions made by
its:
(1) Employees;
(2) Agents;
(3) Ostensible agents; or
(4) Representatives who are acting on its behalf and over
whom it has the right to exercise influence or control or has
actually exercised influence or control which result in the
failure to exercise ordinary care.
(c) It is a defense to any action asserted against a health
insurance carrier, health maintenance organization or other
managed care entity for a health care plan that:
(1) Neither the health insurance carrier, health maintenance
organization or other managed care entity, nor any employee,
agent, ostensible agent, or representative for whose conduct the
health insurance carrier, health maintenance organization or
other managed care entity is liable under subsection (b) of this
section, controlled, influenced or participated in the health
care treatment decision; and
(2) The health insurance carrier, health maintenance
organization or other managed care entity did not deny or delay
payment for any treatment prescribed or recommended by a provider
to the insured or enrollee.
(d) The standards in subsections (a) and (b) of this section
create no obligation on the part of the health insurance carrier,
health maintenance organization or other managed care entity to
provide to an insured or enrollee treatment which is not covered
by the health care plan of the entity.
(e) This article does not create any liability on the part
of an employer, an employer group purchasing organization or a
pharmacy licensed by the state board of pharmacy that purchases
coverage or assumes risk on behalf of its employees.
(f) A health insurance carrier, health maintenance
organization or managed care entity may not remove a physician or
health care provider from its plan or refuse to renew the
physician or health care provider with its plan for advocating on
behalf of an enrollee for appropriate and medically necessary
health care for the enrollee.
(g) A health insurance carrier, health maintenance
organization or other managed care entity may not enter into a contract with a physician, hospital, or other health care
provider or pharmaceutical company which includes an
indemnification or hold harmless clause for the acts or conduct
of the health insurance carrier, health maintenance organization
or other managed care entity. Any such indemnification or hold
harmless clause in an existing contract is hereby declared void.
(h) Nothing in any law of this state prohibiting a health
insurance carrier, health maintenance organization or other
managed care entity from practicing medicine or being licensed to
practice medicine may be asserted as a defense by the health
insurance carrier, health maintenance organization or other
managed care entity in an action brought against it pursuant to
this section or any other law.
(i) In an action against a health insurance carrier, health
maintenance organization or managed care entity, a finding that
a physician or other health care provider is an employee, agent,
ostensible agent, or representative of the health insurance
carrier, health maintenance organization or managed care entity
shall not be based solely on proof that the person's name appears
in a listing of approved physicians or health care providers made
available to insureds or enrollees under a health care plan.
(j) This article does not apply to workers' compensation
insurance coverage.
(k) An enrollee who files an action under this article must
comply with the requirements of article seven-b, chapter
fifty-five of this code, relating to the medical professional
liability act, as it relates to complaints, pretrial procedures
and expert reports.
§16-5T-3. Limitations on cause of action.
(a) A person may not maintain a cause of action under this
article against a health insurance carrier, health maintenance
organization or other managed care entity unless the affected
insured or enrollee or the insured's or enrollee's
representative:
(1) Has exhausted the appeals and review applicable under
the utilization review requirements; or
(2) Before instituting the action:
(i) Gives written notice of the claim as provided by
subsection (b) of this section; and
(ii) Agrees to submit the claim to a review by an
independent review organization.
(b) The notice required by the provisions of paragraph (i), subdivision (2), subsection (a) of this section must be delivered
or mailed to the health insurance carrier, health maintenance
organization or managed care entity against whom the action is
made not later than the thirtieth day before the date the claim
is filed.
(c) The insured or enrollee or the insured's or enrollee's
representative must submit the claim to a review by an
independent review organization if the health insurance carrier,
health maintenance organization or managed care entity against
whom the claim is made requests the review not later than the
fourteenth day after the date notice under the provisions of
paragraph (i), subdivision (2), subsection (a) of this section
is received by the health insurance carrier, health maintenance
organization or managed care entity. If the health insurance
carrier, health maintenance organization or managed care entity
does not request the review within the period specified by this
subsection, the insured or enrollee or the insured's or
enrollee's representative is not required to submit the claim to
independent review before maintaining the action.
(d) Subject to the provisions of subsection (e) of this
section, if the enrollee has not complied with the provisions of subsection (a) of this section, an action under this section may
not be dismissed by the court, but the court may, in its
discretion, order the parties to submit to an independent review
or mediation or other nonbinding alternative dispute resolution
and may abate the action for a period of not to exceed thirty
days for these purposes. The orders of the court are the sole
remedy available to a party complaining of an enrollee's failure
to comply with the provisions of subsection (a) of this section.
(e) The enrollee is not required to comply with the
provisions of subsection (c) of this section and no abatement or
other order pursuant to the provisions of subsection (d) of this
section for failure to comply may be imposed if the enrollee has
filed a pleading alleging in substance that:
(1) Harm to the enrollee has already occurred because of the
conduct of the health insurance carrier, health maintenance
organization or managed care entity or because of an act or
omission of an employee, agent, ostensible agent, or
representative of the carrier, organization or entity for whose
conduct it is liable; and
(2) The review would not be beneficial to the enrollee,
unless the court, upon motion by a defendant carrier, organization or entity finds after hearing that the pleading was
not made in good faith, in which case the court may enter an
order pursuant to the provisions of subsection (d) of this
section.
(f) If the insured or enrollee or the insured's or
enrollee's representative seeks to exhaust the appeals and review
or provides notice, as required by the provisions of subsection
(a) of this section, before the statute of limitations applicable
to a claim against a managed care entity has expired, the
limitations period is tolled until the later of:
(i) The thirtieth day after the date the insured or enrollee
or the insured's or enrollee's representative has exhausted the
process for appeals and review applicable under the utilization
review requirements; or
(ii) The fortieth day after the date the insured or enrollee
or the insured's or enrollee's representative gives notice under
the provisions of paragraph (i), subdivision (2), subsection (a)
of this section.
(g) This section does not prohibit an insured or enrollee
from pursuing other appropriate remedies, including injunctive
relief, a declaratory judgment, or relief available under law, if the requirement of exhausting the process for appeal and review
places the insured's or enrollee's health in serious jeopardy.
NOTE: The purpose of this bill is to regulate health care
liability. It provides definitions. It states how the article
applies to care required by health insurance carriers or health
maintenance organizations and when these entities are liable for
damages. It also provides for limitations on causes of action
against health care providers.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
