Senate Bill No. 613
(By Senators Kessler, Bowman, Edgell and McKenzie)
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[Introduced March 26, 2001; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section six, article seven-b, chapter
fifty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to pretrial
procedures in medical professional liability actions;
including the requirement of submitting "certificate of merit"
of such actions within one hundred twenty days of filing the
action; requiring mandatory mediation before trial; and
permitting binding arbitration in certain situations.
Be it enacted by the Legislature of West Virginia:
That section six, article seven-b, chapter fifty-five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-6. Pretrial procedures.
(a) In each medical professional liability action against a
health care provider, within one hundred twenty days after service of the complaint for an action against a health care provider there
must be submitted on behalf of the plaintiff a certificate of merit
executed by a physician or other health care provider licensed to
practice in the state of West Virginia or other jurisdiction that
indicates that the actions complained of against the health care
provider, are those set out in section three of this article, and
not less than nine nor more than twelve months following the filing
of answer by all defendants, a mandatory status conference shall be
held at which, in addition to any matters otherwise required, the
parties shall:
(1) Inform the court as to the status of the action,
particularly as to the identification of contested facts and issues
and the progress of discovery and the period of time for, and
nature of, anticipated discovery; and
(2) On behalf of the plaintiff, certify to the court that
either an expert witness has or will be retained to testify on
behalf of the plaintiff as to the applicable standard of care or
that under the alleged facts of the action, no expert witness will
be required. If the court determines that expert testimony will
be required, the court shall provide a reasonable period of time
for obtaining an expert witness and the action shall may not be
scheduled for trial, unless the defendant agrees otherwise, until
such that period has concluded. It shall be is the duty of the
defendant to schedule such the conference with the court upon
proper notice to the plaintiff.
(b) In the event that If the court determines prior to trial
that either party is presenting or relying upon a frivolous or
dilatory claim or defense, for which there is no reasonable basis
in fact or at law, the court may direct in any final judgment the
payment to the prevailing party of reasonable litigation expenses,
including deposition and subpoena expenses, travel expenses
incurred by the party, and such other expenses necessary to the
maintenance of the action, excluding attorney's fees and expenses.
(c) If the court determines that the plaintiff has established
a reasonable basis for which to proceed with the trial of the
claim, the parties must engage in mediation of the claim before the
trial.
(d) If the plaintiff files a stipulation with the court prior
to trial that the total value sought in the plaintiff's claim for
damages, including noneconomic loss, does not exceed two hundred
thousand dollars, then the plaintiff may submit the claim against
the physician or health care provider to binding arbitration in
lieu of trial, with the costs of arbitration to be shared equally
by the parties. The plaintiff and physician or health care
provider are limited to two medical expert witnesses in any
arbitration hearing.
NOTE: The purpose of this bill is to
modify the pretrial
procedures in medical professional liability actions by including
the requirement of having the plaintiff submit a "certificate of merit" of such actions within one hundred twenty days of service of
the complaint, signed by a physician licensed to practice in West
Virginia; and requiring mandatory mediation before trial; and
permitting binding arbitration in certain situations.
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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